‘It’s a beautiful thing, the destruction of words.’ So says the character Syme in George Orwell’s great novel 1984. Orwell charts how words are both removed, evacuated of meaning and occasionally have their meaning reversed. The most famous example in the book is perhaps the threefold slogan ‘War is Peace, Ignorance is Strength, Freedom is Slavery’. But why does all this spring to mind because of Trevor Phillips, chair of the Human Rights and Equality Commission?
Yesterday Phillips was commenting on the struggle by some adoption agencies to abide by their religious beliefs about the impropriety of adoption by homosexual couples. The Daily Telegraph quotes him as arguing ‘Religious rules should end “at the door of the temple” and give way to the “public law” laid down by parliament.’
Phillips appears to be arguing that you can have religious rules within your religious settings, but in the public sphere where services are regulated by public law, then religious groups cannot pick and choose which rules to obey. Thus the aberrant thuggee cult in colonial India practised ritual murder. If we apply Phillips’ reasoning, the Thuggee cult cannot commit murder and then claim immunity on the grounds of religious belief.
So what Phillips appears to be advocating is a distinction between public and private in which you can be as religious as you like in private, but not in public if the law says otherwise. This public/private distinction has some affinities with the French political notion of Laïcité (roughly a secular or lay society) with its stresses that there is a public/private divide and that the citizen in the public sphere is simply a citizen and that the individual characteristics of religion and ethnicity are not noticed before the law.
You can see how an equality commissioner would find the egalitarian, de-individualised citizen idea attractive. Well, what could be more reasonable than that? Not a lot, says Keith Porteous Wood of the National Secular Society.
Now, we may feel that this is a betrayal of Christian heritage, and represents a shift in what makes the UK the UK. To be fair, that does not meet Phillips’ argument, which relates to equality before the law in the public sphere.
But this does not mean Phillips is right. Far from it. Let’s go back to Laïcité. The point is equality before the law in the public sphere. The obvious question is, ‘Who determines what is the public sphere?’ The answer is the legislature does. The line between public and private shifts. Thus 50 years ago if a tree stood on my private land I could cut it down. But now if it is, for instance, a mature oak, it may have a tree preservation order on it, originating from public law. In 1999 you could smoke in restaurants, now you can’t. The line between public and private shifts, and in some ways the public has been encroaching more and more on the private.
I suspect Phillips would not dispute this. His point is that it is ok for the legislature to claw more and more into the public sphere because this is the product of democratic majority processes. It is just here that problems arise. My key need if I am in a minority is to have rights that survive the will of the majority. It is precisely when I am in a minority that I most need rights.
This was foreseen long ago by Alexis de Tocqueville in his 19th century work Democracy in America. He noted one case where the property of native Americans was expropriated by white settlers who had had laws passed to back them up. De Tocqueville comments:
‘When an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.’
Hence de Tocqueville coined the term, ‘tyranny of the majority’. Phillips’ argument in that sense is curiously blind to this point. On Phillips’ reasoning, the line between public and private can shift anywhere and there can be no private at all. I think Phillips would deny this on the grounds that the European Convention or the UN Declaration regarding human rights do put a line somewhere. This, though, is obviously naïve, because these instruments were the result of deliberations by humans, and the principle of equality suggests that they are no wiser than I and should not be allowed to thwart me if I and others think they should be amended.
At the end of the day, the conception of human rights such arguments use depends on rights being recognised by the majority. And if dependent on majority recognition, the majority can revoke those rights. Phillips’ view leaves rights most fragile at exactly the time when they need to be most robust, when an unpopular minority needs protection from the majority.
For a Christian, of course, this relates to the way that democratic majorities find it so hard to see themselves as under law, for they make the law. There is the final irony: Phillips accuses Christians of refusing to be under law. In fact it is his account of human rights that is truly lawless, in the sense that it leaves a tyranny of the majority, in which not even God is over the majority.
It seems that for Phillips, vox populi, vox Dei (‘the voice of the people is the voice of God’) is all too literal. Rights? ‘It’s a beautiful thing, the destruction of words’.
Photo: Heinrich Böll Stiftung