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Paine


Thomas Paine (1737–1809), author of perhaps the most famous line in the poetry of rebellion, ‘These are the times that try men’s souls’ (The American Crisis, December 1776), could also be described as the most powerful British writer of human rights literature. Though often assumed to have been an American, he was born in Thetford, Norfolk, and his American nationality was invented by the US Consul to Paris in 1794 to get him out of prison. In fact he had only arrived in the USA months before the war of independence broke out in 1775, immediately becoming notorious with his first political publication, Common Sense (1776), which is held to have inspired the Declaration of Independence. During the war he continued to publish revolutionary material, mainly the journal The American Crisis. After the war he had a brief political career but returned to Great Britain, where he published his most famous work, The Rights of Man, in 1791, mainly as a rebuttal of Edmund Burke’s Reflections on the Revolution, which had been published in the previous year. The Rights of Man, containing an outright cry for the abolition of the monarchy, led to his conviction for treason, and he then fled to France, where again he had a brief political career. The publication of his study of deism, The Age of Reason (1794), was thought too close to atheism, so he returned to the USA and he lived there in poverty to the end of his life. His work is now relatively neglected, mainly because it never contained a sustained theory of political radicalism or liberalism over and above his passionate hatred of monarchy, while Burke’s Reflections continue to command respect as a statement of basic conservative principles. Even Paine’s reasons for attacking British colonialism were not sufficiently broad-based to be attractive to later generations of anticolonialists. He remains, nevertheless, a symbolic hero of human rights.


Parental rights


Parental rights occupy a rather ambiguous status in human rights thought, even though in one way or another they are widely accepted. They can, perhaps, be separated into two categories; firstly the right to seek parenthood, and secondly the right of parents, as opposed to the state, to make crucial decisions on behalf of their children. There is, in general, some form of recognition of the first right: the Universal Declaration of Human Rights, and all its derivative rights codes, establishes the right of all to ‘marry and found a family’ in Article 16 (Clause 1), and, indeed, the family is given a somewhat exalted status there and in other documents (see right to family life). Furthermore, the insistence that men and women ‘are entitled to equal rights as to marriage, during marriage and at its dissolution’ in the same clause would presumably support the rights to be associated with one’s children after divorce which form a major part of family law in most developed countries. This sort of right is a fairly orthodox personal right to exercise a general human freedom without undue interference from the state, and is not logically different from, say, the right to freedom of expression.


The second area of rights occurs most often in the question of human rights provisions for education. While some rights codes, such as the International Covenant on Economic, Social and Cultural Rights, guarantee the positive right to have an education, at least at the elementary level, other codes treat educational choice as a right attaching to parents. Thus the International Covenant on Civil and Political Rights demands in Article 18 (Clause 4) that: ‘The States Parties to the present Covenant undertake to have respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions’. This clause is not, and this is a matter of some interest, replicated in the European Convention on Human Rights, though some national constitutions, notably the German Constitution, do make similar provisions. In fact states clearly cannot leave crucial decisions on the development of future citizens entirely in the hands of private individuals, nor anywhere do they do so. What is at stake is the sort of condition under which a state will feel itself entitled to intervene. The liberal-democratic consensus has been to leave educational choice in parental hands, subject to the state’s right to set standards for all schools, a practice supported by the economic and social covenant; this is actually an ideological choice by liberal democrats, who are not convincing in claiming that education can to any great extent be ideologically neutral. In the USA the issue of parental right to make decisions of this form, particularly where religious freedom is involved in educational choice, has been long and hard fought. The US Supreme Court has gone so far as to uphold the rights of parents over the right of the state to insist on a form of secondary education compatible with the rather narrow sectarian beliefs of the Amish people, even though the state argued that this education deprived the children of an equal chance to compete as adults in the modern world.


Parliamentary Commissioner for Administration (see Ombudsman)


Petition of Right


The Petition of Right, passed by both Houses of Parliament in 1628, was a major step in the constitutional struggle between Parliament and the monarchy, which ultimately led to the English Civil War. It was the first serious effort to produce a formal constitutional restriction on state power since Magna Carta, which it in some ways resembles. Its declared aim was to end the use of royal prerogative in favour of the normal course of law, and specifically to prevent the levying of taxes without clear parliamentary assent and to curtail arbitrary arrest and imprisonment. In pursuing the second it took note of various ways in which the Crown had effectively intimidated people short of formal arrest, for example by billeting soldiers on them (a protection US citizens found sufficiently important much later to put into their Bill of Rights (see Bill of Rights (USA)). It also attempted to restrict another common technique for imposing arbitrary state power, the declaration of martial law. As with Magna Carta, the Petition of Right was seen by those who introduced it not as establishing or defining new rights but rather as restoring what they held to be the state of affairs before power had been abused by the current sovereign.


Picket


Picket is both a verb and a noun, and derives from a military usage where a picket was an outlying sentry. To picket means, in a non-military context, to assemble outside some place where a political event or industrial dispute is going on and to try to persuade those going in and out to stop and listen to one’s protest, and a picket is one who does this. In the United Kingdom the legacy of bitter industrial relations conflicts in the late 1970s and 1980s is still such that it is hard to give an inoffensive definition. Picketing has a long history in industrial relations relating to the attempt of workers on strike to bring activities in factories to a complete halt by persuading non-striking workers not to ‘cross the picket line’, that is, not to enter the premises. Similarly pickets have tried to persuade anyone else having business in the premises, whether involved in the strike or not, such as delivery drivers deployed by a completely different firm, not to enter. At their best behaved and most lawful a group of pickets was still a daunting body of impassioned unionists past whom it was at least psychologically hard for a worker who did not share their views to go, and at their worst they exercised clear intimidation, not necessarily non-violently. Policing picket lines was a tremendously difficult and deeply unpopular job, calling for a fine balance between respecting the right to free assembly on the one hand, and the right to unhindered passage along public highways on the other. Where a dispute as bitter as the various coal miners’ strikes in the 1980s involved people, including the police themselves, living in close communities, pickets were both very powerful and very oppressive activities. Picketing itself has never been made illegal in most countries, because to do so would not only be by definition very difficult, but also clearly unjustified according to almost any doctrine of freedom of speech or freedom of assembly. Secondary picketing, criminalized in the UK since the Thatcher administrations, and of dubious legality in many other jurisdictions, involves applying the same persuasive techniques to workers and suppliers of industrial enterprises where the management were not in dispute with the original unions, but whose products or services were needed to keep the main target factories working.


Picketing as a tactic has spread to other forms of political protest, and it is common in all countries for political activists to picket places where the influential are to assemble, as in ‘picketing Parliament’, forcing parliamentary members to pass though crowds shouting out their messages. More nearly equivalent to industrial picketing is the attempt to cut off supplies to some institution with which one is in dispute by assembling a picket-line through which goods have to be transported and attempting to persuade drivers or others having business there not to go in. Not only have places like nuclear power stations been picketed in such a manner, but even universities. (See also freedom of association).


Police and Criminal Evidence Act (PACE)


The Police and Criminal Evidence Act of 1984 was one of the most far reaching reforms of the British criminal law system ever passed and, despite a plethora of later criminal justice legislation, remains the core of the British system with regard to the rights of accused persons. Until this Act there was very little in the way of legislative protection for those under arrest or police investigation. What constraints existed depended on the unofficial judge’s rules, which originated in 1912 and had most recently been revised in the mid-1960s. PACE imposed a variety of reforms on police procedures, in particular restraints on how long and under what conditions suspects could be detained prior to being charged, as well as imposing severe restrictions on any interviewing after formal charges had been made. The single most important reform was to require all police interviews with suspects to be tape recorded, which enormously reduced the number of cases in which people have later turned out to be convicted on the basis of false confessions, or otherwise altered or ‘doctored’ statements. By creating the post of Custody Officer in each police station, giving a police officer the clear responsibility to ensure that suspects are granted all the rights included in PACE, the Act made it much harder for collusion to occur between police officers which might result in a suspect’s civil rights being evaded—in the way that judge’s rules were regularly evaded. Legislation of the same period further restrained the power of the police, notably the transference of prosecution from the police to an independent civilian Crown Prosecution Service, thus bringing the British practice much more in line with both US and, in a different way European, systems. Another independent civilian organization, the Police Complaints Tribunal, replaced the previous system under which citizens’ allegations of police mistreatment were handled by police officers themselves. The reforms appear to have been effective: throughout the 1980s and early 1990s there was a series of cases (all pre-dating PACE) brought before the Court of Appeal in which convictions were overturned as unsafe when it was shown that the juries had relied on tainted evidence. Increasingly ‘miscarriages of justice’ are now seen to result from, inter alia, deficient expert witness testimony, though the possibility of police collusion to defeat PACE can never be entirely ruled out. (See also interrogation.)


Policy-making in the law


All courts make policy, whether they admit it or not. This is more obviously the case in common law countries, where whole areas of law, and much of contract, are not regulated by statute. It is equally true, however, in code law countries: policymaking is inherent in interpretation, and all legal systems require extensive judicial interpretation of laws and rules. This truism is even more important in constitutional law, which largely governs human rights, than in other areas of both public and private law. Constitutions, especially their bills of rights or equivalent sections, are nearly always written in vague terms; this is not so much a failure of constitutional drafting, as an inevitability where ideas as complex and situations as dependent as those governing human rights have to be encapsulated in a single usable legal document. Political scientists often use a crude and unsatisfactory distinction between making a purely legal decision and making one which is policy oriented, a distinction which no practising judge would see as making sense. Judges are often quite clear about their policy role: British judges unhesitatingly identify some decisions as forcing them to make up their minds on grounds of public policy, though they claim to avoid this as much as possible. What they usually mean is that the issue before them involves either extending the law in a logical manner, which would nevertheless have awkward and undesirable practical consequences, or deliberately refusing the purely legal logic and making a pragmatic decision which will work in the society they are judging.


However, there is a level of judicial involvement in public policy which goes beyond that which is inevitable in interpretation. This comes about when courts are forced to involve themselves in the details of implementing their general decisions. It is a phenomenon largely restricted, as yet, to the USA, though decisions of continental European courts have come close to it. A good example of the latter is the involvement of the Italian Constitutional Court in the regulation of broadcast media. Like the many US examples, this came about largely because parliament failed over a lengthy period to grapple with the problem because of its own political constraints. An example of an overt involvement in policy-making in the USA is that of prison reform. The only constitutional text that bears on prison conditions is the ban, in the Fifth Amendment, on cruel and unusual punishment. Courts, frustrated over administrative and legislative refusal to reform prisons and make them reasonably humane, even when ordered so to do by courts taking note of this clause, have sometimes resorted to directly governing prison systems by appointing court officials to administer them. The extreme was where a district court went so far as to regulate the wattage of electric bulbs in cells. A better known example of direct judicial enforcement of policy comes from the school busing cases where courts, frustrated by educational authorities’ refusal effectively to desegregate schools, enforced their own school districting and busing policies, and kept detailed oversight of the areas for up to ten years.


Clearly such detailed involvement is undesirable, if only because it increases the power of the complaint that constitutional courts exceed their authority when they overturn legislative actions. Nevertheless, the biggest problem of enforcing human rights remains that of non-compliance with court rulings, rather than a failure of courts to act, and there seems no obvious alternative solution.


Positive rights


Positive rights are a category of putative human rights which require not simply a prohibition on some infringement of a pre-existing liberty, but the actual provision of goods, services or entitlements. Thus the freedom of speech, typical of the normal negative rights to be found in rights codes, can be guaranteed because it requires only that the government not impose censorship. Housing rights

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