Set a Thief to Catch a Thief

The people at ARCH are, as has been said, generally right-minded, but there could be a niggling doubt as regards the wisdom of invoking the Human Rights Act 1998 in the fight against the proposal to implement a database of information on all our children. ARCH are going to make the case that the right to a private family life, as detailed in the HRA, will be infringed by the database.

Whilst it is quite clearly the case that the database will infringe the privacy of families and we firmly oppose this as a universal measure, we cannot help but wonder if two wrongs can possibly make a right. The first wrong is, of course, the database, and the second, perhaps more surprisingly, is the HRA.

There are at least five good reasons why the HRA is a bad idea. (There are probably many, many more but have a head cold and cannot think of them right now). One of the main and most memorable reasons why I think the HRA a bad idea is that if the state is allowed to define our rights, we surely sacrifice a fundamental aspect of freedom, namely the principle to be self-directing in the matter of how we perceive the issue of rights, how we argue the case for them and implicitly, how we choose to enact them. Even if these rights as defined in the HRA happen to make a good deal of sense, (as often seems to be the case), we have implicitly lost any hope of genuine autonomy.

We cannot expect the state to set us free. Far better that we are free until we run up against the law than have our freedoms or rights defined for us, the other anxiety being that once the precedent is set that the law may define our rights, what is there to prevent them from taking what appear to be less rational approaches to the issue?

Also, the HRA can contribute to the already widespread misconception that rights are a natural consequence of human existence. By making the issue of human rights a matter of law, many will simply never stop to question the moral legitimacy of these rights since the law seems to suggest that there is no question on the matter. People risk never considering the fact that rights are not implicit in the human condition and that human rights do not exist outside of a social contract or law. The fact that we may be confused into thinking that they do, can mean that we end up feeling constantly aggrieved that our rights are not respected. We develop a litigious and aggrieved society which relishes victimhood and instead of standing firm and fighting to uphold rights which make good explanatory moral sense, turns weakly to the law for protection. Legislating on the matter of rights turns rights which may be argued for and contain sound moral explanations into thoughtless claims.

Then the is the fact that the HRA trumps all other laws, which can lead to some severe inequities that would never result from more negotiated settlements.

When it comes down to the nitty gritty, HRA legislation writers realise that rights must come with all sorts of exemption clauses. People, for example, have a right to education, but in British HR law, they sacrifice this right when the money runs out. Families sacrifice the right to privacy under certain circumstances, such as when their children are at risk. There are some very nebulous terms within the legislation (eg: proportionality) which are necessitated by the unforeseeable complexities of individual situations but the problem is here, that these can always be used against the complainant.

But is there any specific reason to be anxious about trying to prevent the implementation of the database with the HRA? Aside from the fact that the action may fail, - that the judiciary may disagree with the Information Commissioner (whose name escapes me...sorry cold is worsening), who said that he thought the universal database a disproportionate measure, I don't suppose there is much to worry about, since precedent in acknowledging that we have abandoned our claims to autonomous decision making over our rights, is already well set.

Oh, OK then people at ARCH, set a thief to catch a thief. Am going to bed with a hot toddy, to see if this helps with the matter of thinking about this more clearly.