Quangocrats, rights theory and judicial creep


I don’t read much in the way of liberal political thought – well, for research purposes yes, but not for pleasure. That includes, of course, most Anglophone Marxism, heavily soaked in liberalism as it is. The reason why modern-day liberalism annoys my brain has a lot to do with its reliance on rights theory. I prefer to read either unreconstructed communists or unreconstructed conservatives, precisely because, whatever the defects of their positions, they don’t have much time for rights theory.

At least not rights theory as social liberalism construes it. I have a lot of time for the Ron Paul school of thought, drawing on the framers of the American Constitution, who hold that the main function of a bill of rights is to protect the citizenry from the arbitrary power of the state. I’m sceptical about those thinkers who want to legally enshrine lots and lots of positive rights, for three reasons. Firstly, because this formalistic approach overlooks some real-life dynamics, such as that under the old Stormont regime Catholics were not unequal in law – their subjugation was a matter of informal arrangements. Secondly, because the demand for positive rights is open-ended, and as it goes from restriction of government powers to trying to make private citizens be nice, liberalism very quickly shows its illiberal streak.

Finally, liberals have never quite figured out what you do when people’s rights conflict, especially when you’re talking about groups rather than individuals. When that happens, liberals’ default position is usually to prioritise the rights of the group they feel most affinity with. New Labour actually formalised this in the Sexual Orientation Regulations in the row over Catholic adoption agencies, when it was written into law that the right of gay couples to adopt overrode the right of Catholic organisations to operate in accordance with Catholic social teaching. The funny thing is that, given the very small numbers of gay couples applying to adopt, and given the unlikely scenario of many, or even any, of them deciding to apply via the Catholic agencies, that the whole argument was unnecessary – the Catholic agencies could have perfectly well been granted the legal exemption they wanted, without infringing on the right of the gay community to take their custom elsewhere.

Anyway, this is brought down to the local level by Alliance Party activist Margaret Hawkins’ employment tribunal case against her party, supported by the Equality Commission, which provided the delicious spectacle of one lot of liberals taking on another. I direct you to Newton Emerson’s entertaining column on the subject, but will just take a look at some of the highlights:

Her case was taken up by the Equality Commission and funded in full and at length, although it was increasingly apparent that there was no case to answer.

Things became messier and murkier as a tribunal panel stepped down rather than hear a medical witness, the Alliance barrister accused the tribunal of bias and Ms Hawkins made demonstrably inaccurate statements.

Finally, the case collapsed when the Equality Commission withdrew its financial support, citing an “irretrievable breakdown” with the plaintiff.

However, by that time Ms Hawkins had entertainingly impugned several Alliance representatives and her allegations had been widely reported.

Indeed they were, but it’s also interesting what their reception said about the liberal rights mindset:

A critical claim was that David Ford said party colleague Eileen Bell would be “out of her depth” as assembly speaker. The Equality Commission took this as proof of sexism. To portray legitimate criticism of a woman by a man as sexist by default is itself a witless prejudice…

All three panel members resigned because the chair had “difficulty” with a doctor testifying that Ms Hawkins had exaggerated her claim of disability.

This was not because there was any doubt over the doctor’s testimony. It was because the panel did not think anyone claiming to be disabled should be doubted.

These, of course, are not the same people who are deciding your claim for Incapacity Benefit. But beyond some politically correct absurdities, there’s a more serious point to be made:

The Alliance Party has now accused the Equality Commission of pursuing the case to generate publicity.

If anything, this is a generous interpretation of the commission’s motivation. Many of the public bodies which presume to sit in judgment over us would prefer to be more like courts than quangos. The classic case of such a transformation is Canada’s regional human rights commissions, which were given a role in pre-existing rent tribunals.

Within a few years they had transformed them into all-encompassing star chambers hearing endless charges of so-called “hate-speech”.

These commissions repay study, because describing them as star chambers is not an exaggeration. Despite having evolved into quasi-judicial bodies, they don’t have public hearings, they don’t have any rules of evidence, and they certainly don’t operate a presumption of innocence. Your paradigmatic case is some cranky pensioner who writes a homophobic letter to her local paper, only to be hauled in front of a human rights commission and instructed to cease and desist from expressing her opinion. That her opinion may be ugly, bigoted and wrong is beside the point.

Newt continues:

Today, even Canada is not big enough for its new thought police.

In a recent celebrated case, the British Columbia Human Rights Commission found an American author guilty of “Islamophobia” over an article in an American magazine.

There are no comparable ‘quangaroo’ courts in Northern Ireland but this is not for want of demanding powers or attempting to muscle in on quasi-judicial systems. The Equality Commission already has statutory powers of investigation and enforcement and a key objective of its corporate plan is “to effect change through strategic enforcement”.

This makes the commission a sort of equality prosecution service, with a remit to pursue cases to advance its own agenda…

Should an ambitious quango wish to take the next step and graduate from prosecutor to judge and jury, Northern Ireland’s industrial and fair employment tribunals are an obvious target for a Canadian-style change-effecting strategy…

Another interesting vulnerability of the tribunal system is that it is not covered by legal aid. So a quango with a large legal budget and an in-house legal team could go a long way towards setting the tone and direction of the system’s caseload.

That’s why, at the very least, you need a strict separation of functions between the Equality Commission and the tribunals. I actually think we should be prepared to go further and debate whether we need an Equality Commission, but the rights agenda is sufficiently far advanced here to make that subject deeply taboo.

Of course, there is no evidence that the Equality Commission is engaged in cynical empire building. Then again, there was no evidence that the Alliance Party had discriminated against Margaret Hawkins. Perhaps the commission’s true goals have simply been obscured by failure. That happens a lot around here.

Exactly. Where I depart somewhat from Newt is where he talks about the left-liberal bias of our new political establishment. I think it’s necessary to be specific who we’re talking about. As I’ve said before, one big reason why the Gail Walker column in the Telegraph doesn’t work is that Gail’s shtick, apparently modelled on Amanda Platell, is to present herself as the no-nonsense Tory slapping it up the liberal elite. But the north doesn’t have a liberal elite if judged in terms of the political establishment – if you think the DUP are liberal, that would put you in the realms of fascism.

On the other hand, there are people who would deeply love there to be a liberal elite, especially if it included them. This used to manifest itself in Humespeak, and the SDLP’s perennial anti-democratic demands for commissions of liberal-minded technocrats to force the unionists to behave in a civilised manner. It manifested itself, ironically, in the Alliance Party in the days when it was effectively an NIO front party, and when its members could be relied upon to populate quangos, giving them power out of all proportion to their share of the vote.

Nowadays, these sort of people exist in serious numbers in the quangos and the community grantocracy. They are by no means all Alliance Party types – some prominent individuals are superannuated SDLP activists, some are self-proclaimed Trotskyists, most are drawn from the Great and the Good. You know, the way people like Maurice Hayes, Ken Bloomfield or Archbishop Eames seem to end up on every high-powered commission going. And this is how you see the vision of Humespeak coming to pass.

A lot of decent, progressive-minded people, browned off with our conservative population, will welcome this. Take, say, abortion – I’m in favour of legalising abortion here as a social necessity, but it hasn’t gone unnoticed that the Alliance for Choice has more or less given up on trying to win over public opinion, in favour of lobbying Westminster to impose legalisation over our heads. In a classic example of argument from outcome, it’s assumed that, if we get these nice progressive measures, it doesn’t matter if they get imposed by Britain or the EU, or magicked into law by some imaginative judicial activism.

Maybe these changes would make our lives better, but you have to allow that there’s a serious problem here of democracy. And I do suspect that a lot of liberals find democracy a terrible inconvenience when the majority of the population fail to see things there way.

Rud eile: If you’re in the mood for more political incorrectness, I thought this was seriously funny.


  1. charliemarks said,

    July 11, 2009 at 12:16 am

    You know the American Communists always talked about their proposals as building upon the Bill of Rights and Constitution, which I always found a nice way of putting it.

    As for giving up on winning arguments, you got a sense of that in the UK when a lot of people ditched their anti-capitalist opposition to the Common Market and fell in love with Social Europe. As for the Human Rights Act, I value it – where it’s not dodged by the govt – but it comes from above, from outside. There wasn’t so much a public debate on the need for such an article, it was about incorporating EU legislation.

    The great and the good have been meeting around this whole Vote for Change iniative – to get the govt to hold a referendum on electoral reform at the next general election. This is a step forward as far as earnest liberals of the intelligentsia are concerned as there’s popular sovereignty involved in deciding the matter – they haven’t a hope in hell of winning, but it’s a good development. Shame there’s not the bollocks to fight for a vote on the Lisbon treaty…

  2. Garibaldy said,

    July 11, 2009 at 12:34 am

    I agree with a lot of what you are saying SS but I am extremely sceptical of the concept of group rights. In NI, this finds its expression in the idea of nationalist rights and unionist rights. My position is the republican one – all citizens of the state should have equal rights, laid out in a sensible bill of rights, and enforceable through a court tasked with that duty. But that won’t surprise you. The attempted Bill of Rights in NI has been a fuck up from start to finish precisely because of this nonsense of group rights. I do think we can point to positive things from some of the quangoes in NI, and certainly to the effects of a bill of rights in states that have them.

    On another point, I’m surprised you missed out the CPI/Women’s Coalition stranglehold on the quangoes of late. Worse almost than Alliance.

  3. July 11, 2009 at 4:24 am

    The idea among liberals that “democracy doesn’t work and we have to shove our rights down the choking throats of pig-ignorant reactionary peasants” is a very United States way to go about things. If, for example, you can’t beat the Mormon Church in a referendum on gay marriage in California, rely on Big Uncle Supreme Court to do it for you.

    It’s of course the natural outgrowth of bourgeois liberalism, which deep down is anti-democratic because it sees 80% of the population as part of the problem, and wants an intrusive Big Brother state to make us all play nice, as predicted in Dead Kennedy’s “California Über Alles”.

  4. Newton Emerson said,

    July 11, 2009 at 8:39 am

    I’d love to know how the EC avoided a conflict of interest between this case and commissioner Tony Carlin’s role as a lay panel member on employment tribunals.
    Unfortunately, all questions are being referred to the Department of No Comment.

  5. ejh said,

    July 11, 2009 at 9:17 am

    If, for example, you can’t beat the Mormon Church in a referendum on gay marriage in California, rely on Big Uncle Supreme Court to do it for you.

    Right, but what are you supposed to do? Wait forever to get married because you think it’s your responsibility to win round the Mormons first?

    an intrusive Big Brother state

    It’s not actually a “Big Brother” state, is it? (And they’re not actually “thought police”, either, are they?)

  6. Ciarán said,

    July 11, 2009 at 1:32 pm

    Gari: On another point, I’m surprised you missed out the CPI/Women’s Coalition stranglehold on the quangoes of late. Worse almost than Alliance.

    John McAnulty’s usually a tad too pessimistic for my liking, but I really enjoyed his “good riddance to the Women’s Coalition” article a few years ago.

  7. Garibaldy said,

    July 11, 2009 at 9:01 pm

    Thanks for that Ciarán. Enjoyed it a lot, and would agree with a lot of it. I was accused of misogyny on slugger for my response to the demise of this disgrace of an organisation (quite wrongly as it happens – I was offering a class critique). The only thing McAnulty left out was the (alleged?) role of a certain superpower in the talks that led to it emerging.

  8. Harrods said,

    July 11, 2009 at 9:17 pm

    I enjoy your site Splinty, but as someone who is regularly before employment tribunals in England, I don’t believe this is being reported accurately at all.

    eg “Her case was taken up by the Equality Commission and funded in full and at length, although it was increasingly apparent that there was no case to answer.”

    Ok, but anyone who takes an employer’s view of a case will always say something like this. In 99% of cases it isn’t obvious at all that one party has “no case to answer” until you get to the Tribunal – that’s why you have Tribunals: to distinguish between a case which a party thinks it can make, and the case that it can persuade someone else to believe.

    “Ms Hawkins made demonstrably inaccurate statements.” As above – every single person who ever goes before a Tribunal thinks the other side is making demonstrably inaccurate statements. That doesn’t mean they are.

    “Things became messier and murkier as a tribunal panel stepped down rather than hear a medical witness”. This I can’t believe. Tribunal panels step down for all sorts of reasons – eg it’s very often the right reaction when one side accuses of bias (because ultimately it will take a new tribunal to see whether the bias accusation sticks). But no tribunal ever steps down because it doesn’t want to hear a medical witness.

    Medical witnesses are rarely controversial, or exciting at all.

    And Tribunals are used to hearing much barmier things without batting an eyelid: I can remember persuading one Tribunal to allow a witness to speak (the client insisted on it) to accuse his employer of being a member of the Iranian secret police. The allegation was barmy. The witness was incredible. And we hadn’t warned the other side that we would make it in court. (They were not exactly best pleased). The tribunal did what Tribunals always do: it heard the witness and it ignored their evidence. That’s what Tribunals do.

    “Finally, the case collapsed when the Equality Commission withdrew its financial support, citing an “irretrievable breakdown” with the plaintiff.” Ie – in all probability the Alliance made an offer to settle and the claimant turned it down. The Equality Commission made a sober assessment of the remaining value of the case (decided it was low) and withdrew.

    The more interesting point is of course – why did they back it in the first place? – the EHRC over here seems to back about (very roughly) 1/100 of the cases that are put to it for funding. They never back anything without it having gone through lawyers first. My guess is that Hawkins’ case didn’t look to bad on paper; it just fell down quickly when she was in court.

    That happens quite a bit too…

  9. Ciarán said,

    July 11, 2009 at 10:42 pm

    I’ll have to look that Slugger post up now, Garibaldy.

  10. Garibaldy said,

    July 12, 2009 at 12:39 pm

    Some of the attempts to defend it are ridiculous


  11. August 2, 2009 at 12:58 pm

    […] advocacy of ‘positive’ rights, but the anonymous blogger at Splintered Sunrise is and does exactly that. Nonetheless, I’m not entirely sure academic liberal political philosophers of the past thirty […]

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