The decay of this nation has risen exponentially ever since 1997. The Blair administration succeeded in turning governance on its head by the transference of large areas of democratic accountability to quangos, NGO’s and the chaotic devolution process.
In that, Blair had been ‘tutored’ by Derry, Lord Irvine, who was rewarded by Blair by the appointment as Lord Chancellor, but was later stabbed in the back by the decision to downgrade the office of Lord Chancellor
and the subsequent inception of a Supreme Court, under the pretence of modernisation and to bring our judicial process in line with the European judicial system.
The standard of legislation had deteriorated and, as David highlights, the combined effect of the poor standard of legislative drafting, the admission of the ECHR and the existence of the overriding power of the Supreme Court has produced a situation in which the unelected judiciary now regularly make law ‘on the hoof’ via their own interpretation of poorly drafted legislation. A situation which produces instances in which the law is shown to be ‘an ass’, but which goes to illustrate the increasing paucity of the ability of those elected to Parliament ie the constitutional seat of legislation.
In short, Anthony Charles Lynton Blair has left a dark stain on the functionality of this nation’s societal organisation which has only been further darkened by all those in the Uniparty who have followed him.
I think this is connected with the well-known difference between British law and Continental European law. In Britain (allegedly) everything is allowed unless it is specifically prohibited by law (e.g. slavery).
Therefore, in the British context, it makes absolutely no sense to legislate for a "human right" or any other kind of right. We have a right to free speech simply because there is no law that says, "You shall not speak evil of the government" or something.
This does, of course, mean that the European Convention on Human Rights makes no sense at all in the context of British law (although perhaps it does in Europe). I suspect this is also why every right that is supposedly guaranteed by the Convention (and therefore by the Human Rights Act) has so many exceptions noted in the Convention (like the public interest exception).
Ultimately this incompatibility with British law is why Britain needs to repeal the Human Rights Act and withdraw from the ECHR.
Was this change part of Tony Blair's project to ensure that progressive lawyers could continue to do politics while out of favour with the English electorate, alongside devolution to regional parliaments and assemblies, and the setting up of dozens of extra-parliamentary commissions and regulators?
The telling factor is that since 1997 we have had hardly any significant devolution for regions of England which Labour does not control or anticipate controlling.
There is a book waiting to be written on the intellectual origins of all of this. It is no accident that Blair (and his wife) and many of the key players were lawyers who would have been steeped in the mindset of law schools of the era.
This is one of the reasons I became interested in Samuel Pisar as a lawyer, with his time at UNESCO and then becoming an advisor to the Kennedy administration. Clearly his ambitions went well beyond mere legal opinion.
Our national trajectory has been from higher to lower ever since explosive energy was released sometime in the early Middle Ages, perhaps coinciding with the establishment of the church as a 'power' in the kingdom, and to my mind it was and is more of biological event outside the ability of men to control or influence it. On that basis if my instinct is correct there is nothing that men of good quality can do to stop it. They are merely outliers to the current age and can make no difference to general pattern of decay. Germination, vigorous growth, senescence, decay and death.
That Blair fella was no fool. He knew exactly what he was doing. And I’m sure that a quarter of century on he’s generally pretty pleased with the way his legacy is working out.
We read in the Telegraph today that Blair was rather annoyed by a paper produced to him in 2004 by David Blunkett showing that a big majority of the British public was not on board with mass immigration and multiculturalism. His solution was, inevitably with his bureaucratic mindset, a big comms onslaught to convince the people of the merits of immigration and multiculturalism (that worked well!) but I’m sure his other thought was that it didn’t ultimately matter. The British People were going to get it regardless and his HRA and the outsourcing of all authority in the matter to quangos and judges was part of the process.
Jeremy Bentham's opinion of "human rights" seems to me hard to beat.
"That which has no existence cannot be destroyed — that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle".
Interesting quotation. But if I've understood correctly, Bentham is complaining that "natural rights" become laws that cannot be abrogated. This situation however has hardly been the case. These rights-based laws always include a caveat like "necessary in a democratic society in the interests of national security," etc. as David points out. Consequently, judges wind up engaging in political decisions rather than overseeing the dispensation of clear rules. And as a further consequence, citizens and foreigners alike cannot know in advance what the rules are or whether they are the beneficiaries of them, since it's all too discretionary.
I think you are focusing - understandably enough - on the final sentence of the quotation.
To my mind, the most important thing Bentham says is:
"Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts".
In other words, "rights" are imaginary and should not be used to make law. It makes good sense. Say I have a right to clean water, for instance. What on earth can that really mean? Especially if I find myself in a place where there is no clean water?
Every alleged "human right" seems to be a demand for other people's money and/or services.
Rights don't exist until they are granted by whatever authority enshrines that right. So the government gives you the right to clean water. It also gives the monopoly water company the right to raise capital on the stock market and pay dividends. When the water is polluted, the government gives you the right to complain to an official regulator, which in turn has the right to fine the monopoly water company. The water is still polluted, though. We all have equal rights, but some rights are more equal than others.
Interesting, Tom. I like the clean water example. So... how would one go about remedying the clean water issue? . . . since it is indeed in everyone's interest to have access to clean water.
My complaint regarding our rights-based culture has been that there's no talk of obligations and responsibilities: what used to be called "civic republicanism." But here we're talking about law vs. rights, so I'm uncertain how the critique plays out. I suppose I'm also considering how the whole notion of human rights emerged following a period of brutal warfare. Laws of war are absurd, but does that mean we jettison them?
I would avoid any appeal to "human rights", because such an appeal leads one to rely on those rights - and they cannot be relied upon. They have no executive machinery. As Daniel Howard James just reminded us, some people end up having more and better rights than others. In fact, the only rights worth anything are legal rights, but they must be backed up by government. The government of any given state or community must decide what rights can be afforded and guaranteed, and pass laws giving its citizens those rights. In Colonel Qadafi's Libya, all citizens had legal rights to free healthcare and education, as well as housing. That was possible because of Libya's oil wealth. Unfortunately, Western governments hated the idea that a "backward" African nation could give its people so much through socialism. That made capitalism look bad. So they broke it.
People in most civilised countries are guaranteed clean water by their governments. But in some countries with weaker, poorer governments that cannot be afforded. Western corporations steal all the water for their industrial plants, and people go thirsty. To get clean water they can go elsewhere, or elect a government that gets tougher with the corporations, or have a revolution, or make the corporations an offer they can't refuse. What they can never do is ask their "human rights" to help them, because those "human rights" are imaginary.
You are of course correct that rights must be balanced against duties. The laws must be carefully written to make sure that no one has rights at the net expense of others.
Don’t forget Bliar wasn’t that bothered about the views of others and famously said on Parkinson about the Iraq war : "If you have faith about these things, then you realise that judgment is made by other people. If you believe in God, it's made by God as well." Bliar said God would judge him not humans.
You've hit the nail firmly on the head, David. The Judiciary are destroying the country and there is nothing we can do to stop them. This, of course, is Starmer's delight - that law overpowers politics, and we humble citizens are left with no rights other than to submit.
Hmm. Fuck that, not to put to fine a point on it. Epping and Diss is just the start.
Time for a bonfire of the quangos, the Supreme Court, the race relations acts, EHCR and all those fucking Blairish innovations that have wrecked our constitution. Oh, and abolish the Scottish Parliament with its inflated delusional fools.
This is far too often the result of legal education: "being ‘learned in the law’ leads one to very foolish conclusions, and pig ignorance is actually a benefit". We train lawyers to pick nits to find a seam through the law to the advantage of the client with no regard to the wisdom of the sought after result. Of course, the judges who fall prey to the argument are complicit.
Ayn Rand has the correct definition of human rights. Rights can only be individual and they protect an individual’s right to life and everything they need to support their life. This means everything they own and work for is theirs and it cannot be taken away by the government or anybody, so no income or property taxes.
Super insightful as usual, but here's my concern; lots of clever people were sure the EU lay at the root of the rot, so we sunk a half decade into that adventure. Turns out we were aiming at the wrong target and Brexit delivered thin gruel.
So now we turn to ECHR, and this *will* be a half decade or more to deliver; withdrawal will create tensions with HRA that need to be addresses and will also undermine the Good Friday Agreement. The EU - publicly humiliated today by Trump - will be keen to reassert its ego and punish us for upending GFA. So now we get to run round the Brexit block again. Another world of pain awaits.
And my fear is ECHR is a lot like EU in that it is not the *reason* our radicalised elites act the way they do - it's the *excuse*. By all means take away that excuse, but it's a multi-headed hydra when they respond with "well we're not gonna ignore 40 years of case law precedent". But by then it's 2030 and we've had another 3 million unvetted men with their d1cks out and we're back to the drawing board.
This is a good exposition, and I enjoy your working with Hobbes here. But Hobbes is a 'natural rights' philosopher - part of the problem today is that nobody now defends a position of 'natural rights' and even the biggest example of the form - namely the US constitution - is no longer understood in terms of 'natural rights' but in terms of constitutional law. That is, however much closer to what you're suggesting here than anything that exist in the UK right now!
As ever, I cleave to Kant's take on the question of rights, which is that the condition of right can solely come about when the government is prevented from impinging on anyone's liberty except in the sole case of securing a like liberty for everyone. In this sense, there is (as you say here) a big difference between law and rights - law binds the citizens, rights bind the government. In this regard, yet again, the framers of the US constitution get far closer to where we need to be.
I find it hard not to worry that the tribal divisions between the two British political societies (that of the nation and that of the 'human') will render a meaningful constitution an impossible ask at this time - and this suggests to me that our problems are a long way from being resolved.
Stay wonderful,
Chris.
PS: For the benefit of any rubberneckers in the Uncibal comments interested in the philosophy of rights, you can read more on how contemporary rights violate Kant's 'condition of right' here:
Interesting and it made me wonder if this kind of bloating of law is related to that which prevents most public projects from ever getting off the drawing board.
Just quoted "[A]ssessment of ‘proportionality...’ is the point at which courts pretty unambiguously depart from any vestigial commitment to the rule of law, and start instead to engage in the mere application of their own opinion" in my X feed. Your article focuses (compellingly) on the way that judicial proportionality tests can denude the power of legislatures to establish a dependable and predictable framework of laws and legal enforcement. But they can just as easily undermine rights as well. Canadians, like me, who supported the Freedom Convoy in Feb 2022 realized to their sorrow that every civil freedom we (thought we) have is compromised right out of the gate by this very style of judicial reasoning. In this country we have a much ballyhooed 'Charter of Rights and Freedoms' which establishes notional limits on state interference in the lives of citizens. But the whole thing is is prefaced by a 'Section 1' which states baldly that the federal government is free to ignore each and every subsequent Section provided its chosen form of interference "can be demonstrably justified in a free and democratic society." Want to guess who makes that call? Of course there's a well-established legal test for determining whether the government can get away with something under Section 1, but it ultimately comes down to whether or not a judge decides the interference is 'proportional.' This effectively turns our fabled 'Charter' something like an etiquette manual for the federal government; i.e., try to follow these rules as best you can, but never mind them if you're ever in a real jam. In fairness, a federal court judge did ultimately rule that the government's freezing of protesters' bank accounts was ultra vires (in a case that the government immediately appealed, and which may ultimately be decided by a Supreme Court whose Chief Justice has publicly expressed his hostility to the Convoy protests), but it could just as easily gone the other way.
The decay of this nation has risen exponentially ever since 1997. The Blair administration succeeded in turning governance on its head by the transference of large areas of democratic accountability to quangos, NGO’s and the chaotic devolution process.
In that, Blair had been ‘tutored’ by Derry, Lord Irvine, who was rewarded by Blair by the appointment as Lord Chancellor, but was later stabbed in the back by the decision to downgrade the office of Lord Chancellor
https://www.lawgazette.co.uk/analysis/turning-lord-chancellor-into-just-another-politician-was-a-mistake/70871.article
and the subsequent inception of a Supreme Court, under the pretence of modernisation and to bring our judicial process in line with the European judicial system.
The standard of legislation had deteriorated and, as David highlights, the combined effect of the poor standard of legislative drafting, the admission of the ECHR and the existence of the overriding power of the Supreme Court has produced a situation in which the unelected judiciary now regularly make law ‘on the hoof’ via their own interpretation of poorly drafted legislation. A situation which produces instances in which the law is shown to be ‘an ass’, but which goes to illustrate the increasing paucity of the ability of those elected to Parliament ie the constitutional seat of legislation.
In short, Anthony Charles Lynton Blair has left a dark stain on the functionality of this nation’s societal organisation which has only been further darkened by all those in the Uniparty who have followed him.
Indeed, I call it "Blair's election-proof democracy".
Peter Hitchens I think understands this better than anyone.
https://hitchensblog.mailonsunday.co.uk/2017/08/corbyn-or-blair-guess-which-ones-the-real-marxist-menace.html
Uncibal is one of the best substacks.
Very interesting, David.
I think this is connected with the well-known difference between British law and Continental European law. In Britain (allegedly) everything is allowed unless it is specifically prohibited by law (e.g. slavery).
Therefore, in the British context, it makes absolutely no sense to legislate for a "human right" or any other kind of right. We have a right to free speech simply because there is no law that says, "You shall not speak evil of the government" or something.
This does, of course, mean that the European Convention on Human Rights makes no sense at all in the context of British law (although perhaps it does in Europe). I suspect this is also why every right that is supposedly guaranteed by the Convention (and therefore by the Human Rights Act) has so many exceptions noted in the Convention (like the public interest exception).
Ultimately this incompatibility with British law is why Britain needs to repeal the Human Rights Act and withdraw from the ECHR.
Good read, David. Have judges assumed these responsibilities to themselves, or have they been put in this position by poorly worded legislation?
A heavy dollop of both! Ambitious judges combined with sloppy, or lazy, legislators.
Both! And don't forget asylum/ inmigration solicitors making money each time they succeed at blocking someone's deportation.
Was this change part of Tony Blair's project to ensure that progressive lawyers could continue to do politics while out of favour with the English electorate, alongside devolution to regional parliaments and assemblies, and the setting up of dozens of extra-parliamentary commissions and regulators?
The telling factor is that since 1997 we have had hardly any significant devolution for regions of England which Labour does not control or anticipate controlling.
There is a book waiting to be written on the intellectual origins of all of this. It is no accident that Blair (and his wife) and many of the key players were lawyers who would have been steeped in the mindset of law schools of the era.
This is one of the reasons I became interested in Samuel Pisar as a lawyer, with his time at UNESCO and then becoming an advisor to the Kennedy administration. Clearly his ambitions went well beyond mere legal opinion.
Our national trajectory has been from higher to lower ever since explosive energy was released sometime in the early Middle Ages, perhaps coinciding with the establishment of the church as a 'power' in the kingdom, and to my mind it was and is more of biological event outside the ability of men to control or influence it. On that basis if my instinct is correct there is nothing that men of good quality can do to stop it. They are merely outliers to the current age and can make no difference to general pattern of decay. Germination, vigorous growth, senescence, decay and death.
Re-enchantment is needed...
That Blair fella was no fool. He knew exactly what he was doing. And I’m sure that a quarter of century on he’s generally pretty pleased with the way his legacy is working out.
We read in the Telegraph today that Blair was rather annoyed by a paper produced to him in 2004 by David Blunkett showing that a big majority of the British public was not on board with mass immigration and multiculturalism. His solution was, inevitably with his bureaucratic mindset, a big comms onslaught to convince the people of the merits of immigration and multiculturalism (that worked well!) but I’m sure his other thought was that it didn’t ultimately matter. The British People were going to get it regardless and his HRA and the outsourcing of all authority in the matter to quangos and judges was part of the process.
Jeremy Bentham's opinion of "human rights" seems to me hard to beat.
"That which has no existence cannot be destroyed — that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle".
- Jeremy Bentham (“Anarchical Fallacies”, 1843)
Interesting quotation. But if I've understood correctly, Bentham is complaining that "natural rights" become laws that cannot be abrogated. This situation however has hardly been the case. These rights-based laws always include a caveat like "necessary in a democratic society in the interests of national security," etc. as David points out. Consequently, judges wind up engaging in political decisions rather than overseeing the dispensation of clear rules. And as a further consequence, citizens and foreigners alike cannot know in advance what the rules are or whether they are the beneficiaries of them, since it's all too discretionary.
I think you are focusing - understandably enough - on the final sentence of the quotation.
To my mind, the most important thing Bentham says is:
"Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts".
In other words, "rights" are imaginary and should not be used to make law. It makes good sense. Say I have a right to clean water, for instance. What on earth can that really mean? Especially if I find myself in a place where there is no clean water?
Every alleged "human right" seems to be a demand for other people's money and/or services.
Rights don't exist until they are granted by whatever authority enshrines that right. So the government gives you the right to clean water. It also gives the monopoly water company the right to raise capital on the stock market and pay dividends. When the water is polluted, the government gives you the right to complain to an official regulator, which in turn has the right to fine the monopoly water company. The water is still polluted, though. We all have equal rights, but some rights are more equal than others.
Very acute! And nicely put. I completely agree.
The whole business is very good for lawyers.
Interesting, Tom. I like the clean water example. So... how would one go about remedying the clean water issue? . . . since it is indeed in everyone's interest to have access to clean water.
My complaint regarding our rights-based culture has been that there's no talk of obligations and responsibilities: what used to be called "civic republicanism." But here we're talking about law vs. rights, so I'm uncertain how the critique plays out. I suppose I'm also considering how the whole notion of human rights emerged following a period of brutal warfare. Laws of war are absurd, but does that mean we jettison them?
I would avoid any appeal to "human rights", because such an appeal leads one to rely on those rights - and they cannot be relied upon. They have no executive machinery. As Daniel Howard James just reminded us, some people end up having more and better rights than others. In fact, the only rights worth anything are legal rights, but they must be backed up by government. The government of any given state or community must decide what rights can be afforded and guaranteed, and pass laws giving its citizens those rights. In Colonel Qadafi's Libya, all citizens had legal rights to free healthcare and education, as well as housing. That was possible because of Libya's oil wealth. Unfortunately, Western governments hated the idea that a "backward" African nation could give its people so much through socialism. That made capitalism look bad. So they broke it.
People in most civilised countries are guaranteed clean water by their governments. But in some countries with weaker, poorer governments that cannot be afforded. Western corporations steal all the water for their industrial plants, and people go thirsty. To get clean water they can go elsewhere, or elect a government that gets tougher with the corporations, or have a revolution, or make the corporations an offer they can't refuse. What they can never do is ask their "human rights" to help them, because those "human rights" are imaginary.
You are of course correct that rights must be balanced against duties. The laws must be carefully written to make sure that no one has rights at the net expense of others.
Don’t forget Bliar wasn’t that bothered about the views of others and famously said on Parkinson about the Iraq war : "If you have faith about these things, then you realise that judgment is made by other people. If you believe in God, it's made by God as well." Bliar said God would judge him not humans.
"Bliar said God would judge him not humans".
How convenient. I wonder if ordinary common-or-garden murderers will use that defence in court - and if so with how much success.
You've hit the nail firmly on the head, David. The Judiciary are destroying the country and there is nothing we can do to stop them. This, of course, is Starmer's delight - that law overpowers politics, and we humble citizens are left with no rights other than to submit.
Hmm. Fuck that, not to put to fine a point on it. Epping and Diss is just the start.
Time for a bonfire of the quangos, the Supreme Court, the race relations acts, EHCR and all those fucking Blairish innovations that have wrecked our constitution. Oh, and abolish the Scottish Parliament with its inflated delusional fools.
This is far too often the result of legal education: "being ‘learned in the law’ leads one to very foolish conclusions, and pig ignorance is actually a benefit". We train lawyers to pick nits to find a seam through the law to the advantage of the client with no regard to the wisdom of the sought after result. Of course, the judges who fall prey to the argument are complicit.
Ayn Rand has the correct definition of human rights. Rights can only be individual and they protect an individual’s right to life and everything they need to support their life. This means everything they own and work for is theirs and it cannot be taken away by the government or anybody, so no income or property taxes.
Super insightful as usual, but here's my concern; lots of clever people were sure the EU lay at the root of the rot, so we sunk a half decade into that adventure. Turns out we were aiming at the wrong target and Brexit delivered thin gruel.
So now we turn to ECHR, and this *will* be a half decade or more to deliver; withdrawal will create tensions with HRA that need to be addresses and will also undermine the Good Friday Agreement. The EU - publicly humiliated today by Trump - will be keen to reassert its ego and punish us for upending GFA. So now we get to run round the Brexit block again. Another world of pain awaits.
And my fear is ECHR is a lot like EU in that it is not the *reason* our radicalised elites act the way they do - it's the *excuse*. By all means take away that excuse, but it's a multi-headed hydra when they respond with "well we're not gonna ignore 40 years of case law precedent". But by then it's 2030 and we've had another 3 million unvetted men with their d1cks out and we're back to the drawing board.
Hi David,
This is a good exposition, and I enjoy your working with Hobbes here. But Hobbes is a 'natural rights' philosopher - part of the problem today is that nobody now defends a position of 'natural rights' and even the biggest example of the form - namely the US constitution - is no longer understood in terms of 'natural rights' but in terms of constitutional law. That is, however much closer to what you're suggesting here than anything that exist in the UK right now!
As ever, I cleave to Kant's take on the question of rights, which is that the condition of right can solely come about when the government is prevented from impinging on anyone's liberty except in the sole case of securing a like liberty for everyone. In this sense, there is (as you say here) a big difference between law and rights - law binds the citizens, rights bind the government. In this regard, yet again, the framers of the US constitution get far closer to where we need to be.
I find it hard not to worry that the tribal divisions between the two British political societies (that of the nation and that of the 'human') will render a meaningful constitution an impossible ask at this time - and this suggests to me that our problems are a long way from being resolved.
Stay wonderful,
Chris.
PS: For the benefit of any rubberneckers in the Uncibal comments interested in the philosophy of rights, you can read more on how contemporary rights violate Kant's 'condition of right' here:
https://strangerworlds.substack.com/p/the-limits-of-force
Interesting and it made me wonder if this kind of bloating of law is related to that which prevents most public projects from ever getting off the drawing board.
Just quoted "[A]ssessment of ‘proportionality...’ is the point at which courts pretty unambiguously depart from any vestigial commitment to the rule of law, and start instead to engage in the mere application of their own opinion" in my X feed. Your article focuses (compellingly) on the way that judicial proportionality tests can denude the power of legislatures to establish a dependable and predictable framework of laws and legal enforcement. But they can just as easily undermine rights as well. Canadians, like me, who supported the Freedom Convoy in Feb 2022 realized to their sorrow that every civil freedom we (thought we) have is compromised right out of the gate by this very style of judicial reasoning. In this country we have a much ballyhooed 'Charter of Rights and Freedoms' which establishes notional limits on state interference in the lives of citizens. But the whole thing is is prefaced by a 'Section 1' which states baldly that the federal government is free to ignore each and every subsequent Section provided its chosen form of interference "can be demonstrably justified in a free and democratic society." Want to guess who makes that call? Of course there's a well-established legal test for determining whether the government can get away with something under Section 1, but it ultimately comes down to whether or not a judge decides the interference is 'proportional.' This effectively turns our fabled 'Charter' something like an etiquette manual for the federal government; i.e., try to follow these rules as best you can, but never mind them if you're ever in a real jam. In fairness, a federal court judge did ultimately rule that the government's freezing of protesters' bank accounts was ultra vires (in a case that the government immediately appealed, and which may ultimately be decided by a Supreme Court whose Chief Justice has publicly expressed his hostility to the Convoy protests), but it could just as easily gone the other way.