Today sees the launch of a new pamphlet authored by Peter Oborne and Jesse Norman (author of compassionate conservatism and a Prospective Parliamentary Candidate for a target seat currently held by a lib dem) ‘Churchill’s legacy: The Conservative Case for the Human Rights Act’.

According to Peter Oborne, the Human Rights Act is a “near perfect expression of Tory values.” Obviously, Peter Oborne and I share fundamentally different conceptions of what constitutes authentic conservatism.

I have always been intrigued by Cameron’s proposals for a British Bill of Rights and have had sympathy with his criticisms of the Human Rights Act. Indeed, attacking the Human Rights Act as a ‘thugs charter’ makes sense as a short term tactic in opposition to win votes. But once in Government, I would imagine that enacting a British Bill of Rights would not be one of Cameron’s follow through policies given the other major strategic choices and decisions he faces in areas such as the economy, public services and foreign affairs.

At this point, perhaps, I should declare my hand though – as a court sceptic and a political constitutionalist I subscribe to the view that citizen’s fundamental rights and liberties are best protected, defined and decided on through the legislative process, not by handing power over this area to the judiciary and unelected judges.

This is not a left/right debate but a debate about where accountability and power should lie in the UK constitution. Will the UK’s constitutional future be one characterised by an ever increasing willingness to embrace the legal constitution or will it stay consistent with the inheritance of political constitutionalism.

As the public law expert, Adam Tomkins argues,

“Traditionally, English public law has been based on the political constitution, but over the past thirty years the tradition of the political constitution has come under increasing pressure from the rival theory of legal constitutionalism.”

Just because judicial activism might lead to conservative or centre right outcomes in terms of public policy does not mean that those from the centre right should support the judicialisation and ever greater legalisation of politics. Indeed, it used to be the centre – left who were articulated the most scepticism about the judiciary’s ability to bring about progressive change in society and yet now, more often than not, it’s the centre right, which criticizes  constitutionally entrenched charters of rights as being contrary to their fundamental values.

Ron Hirschl has observed that over the last 20 years constitutionalism across the globe has made the “astonishingly rapid transition to what may be called juristocracy” as liberal democracies witness the expansion of judicial power at the expense of the legislature.

In the UK’s constitutional system, there are problems with how accountable the Government is and the effectiveness of Parliament in holding the Government to account. But the answer to the problems within the UK’s constitution lie not with the ever increasing expansion of judicial power. The modification of the Westminster model of governance in light of the challenges posed by devolution does not necessarily mean we have reached an end of history moment for the political constitution. As I have said elsewhere,

“The problem with constitutionally entrenched charters of rights in general is that they facilitate the judicialization of the body politic and the legalisation of political discourse. As the great JAG Griffith stated, “What are truly questions of politics and economics are presented as questions of law.”

The crux of Cameron’s argument on the need to replace the HRA with a new British Bill of Rights is neatly summarised by Theo Rycroft who in an article for the UCL Human Rights review said that,

“The HRA had failed, in Cameron’s view, adequately to protect liberty, and it had undermined the state’s ability to provide its citizens with security. What was needed was a document which defined ‘the core values which give us our identity as a free nation’ and spelt out ‘the fundamental duties and responsibilities of people living in this country both as citizens and foreign nationals.”

Dominic Raab’s book, ‘the assault on liberty’ makes similar arguments criticising the Labour Government for expanding the power of the state at the expense of the individual liberty of British citizens. The problem with Raab’s critique is that the expansion of state power under Labour is more adequately addressed through the work of conservative thinkers like Philip Blond and Danny Kruger.

Oborne and Norman’s argument is that Cameron’s conservatives should abandon his plans to repeal the HRA and replace it with a British Bill of Rights because the HRA is “a thoroughly Conservative piece of legislation, as a matter of history, of law and of philosophy.” They argue that the ECHR and Churchill’s support for it put an approvingly conservative stamp from history on the HRA and that most of the conservative’s criticism of it are unfounded.

As Oborne argues at the guardian’s comment is free,

“Start with history. The rights set out in the act are taken directly from the European convention on human rights, which was signed by the UK in 1951. They were inspired by a Conservative politician, Sir Winston Churchill, and drafted under the guidance of another one, David Maxwell-Fyfe (later Lord Chancellor Kilmuir) in the face of considerable opposition from the Attlee government. The act should thus be regarded as the creation not of New Labour, but of the Conservative party.”

Oborne addresses the issue of rights inflation, where, increasingly, moral and political claims are made using the language of rights, and argues that it’s not the ECHR/HRAs fault but that of the EU Charter of Fundamental Rights. However, the problem of course is more philosophical than it is practical. Debates about rights conceptually, what they are, and who has them, go right to the very heart of many contemporary debates in political philosophy.

The part of the pamphlet I found the most intriguing, however, is the section on Burke and rights where the authors, as I see it, attempt to construct a Burkean defence of the Human Rights Act based on making a conceptual distinction between ‘abstract or metaphysical’ rights and rights that are actually codified in law based on the traditions of the common law and human experience.

The task of analysing Burke’s view of rights is complicated as Jeremy Waldron notes,

“The task of understanding Burke’s attack on the Declaration of rights is complicated, first by his own insistence that his intention was not to attack human rights as such but to vindicate what he called the ‘real rights of man’.”

Burke observed that, “Government is not made in virtue of natural rights, which may and do exist in total independence of it; and exist in much greater clearness, and in a much greater degree of abstract perfection: but their abstract perfection is their practical defect. By having a right to everything they want everything”

Burke in rejecting the rights of man as an abstraction thought that politics should be viewed in the words of human rights academic A. Belden Fields, “as a concrete and delicate process of evolution that is driven by dynamic within the bodies politic…That also meant that the civil rights and rights holders would differ from political system to political system”.

Therefore within specific and distinct national traditions rights would evolve organically and would be relative to specific national traditions. The radical imposition of long lists of the rights of man runs counter to the type of conservative thinking that stresses the organic evolution of ideas, concepts and practices.

The idea advanced by Burke that the problem with rights is their perfect abstraction is central to his critique. In his words “what is the use of discussing a man’s abstract right to food or medicine? The question is upon the method of procuring and administering them. In that deliberation I shall always advise to call in the aid of the farmer and the physician, rather than the professor of metaphysics” and as Onora O’Neill says “what is the point of having an abstract right unless you also have a way of securing whatever it is that you have the right to?”

Would Burke have supported the Human Rights Act?

“What would Philip Gould do?” That’s the question on my lips as this weeks Labour party conference in Brighton comes to a close? Those who know me will be aware of my admiration for Gould; New Labour’s pollster and all round strategic genius. The Tories have paid careful attention to the framework for recovery offered in Gould’s book. Steve Hilton has read it and so have a whole host of others – indeed it is a testimony to Gould’s political genius that the Conservatives should be so enamoured with his book.

Gould understood in profound terms how far Old Labour had strayed from the centre ground of British politics and along with others helped offer a roadmap back to office and power for the Labour party. Could Philip Gould solve this mess that Labour are in? I often remarked to old colleagues in the past that not even a combination of Karl Rove (at the height of his powers), Lynton Crosby, Alastair Campbell and Philip Gould could save the UUP from election defeat and a similar sentiment may be true of the Labour party in 2010.

It’s indicative of the political times we live in when Danny Finkelstein, former advisor to Major and Hague appears in the Spectator to offer is advice to the Labour Party on how to rescue themselves.

Killer quote from Finkelstein:

“Before I set out my ideas, we had better deal with Gordon Brown. Advising Labour on how to improve its position without advising it to get rid of Mr Brown is like advising someone how to deal with their cheesy feet problem without advising them to stop wearing shoes made out of brie.”

A recent editorial in the Daily Telegraph urged Germany’s re – elected Chancellor,  Angela Merkel to “dare to be radical” and if by that they meant dare to be neoliberal then they are barking up the wrong tree.

Merkel has already declared that despite governing in a coalition with more natural political partners in the form of the Free Democratic Party she will govern from the centre. Indeed, as an editorial in the times suggested,

“Her victory gives Ms Merkel added authority in Europe and within the Atlantic Alliance. That is unlikely to change her low-key style or her preference for government by consensus. But her strong mandate and Germany’s steady emergence from recession will ensure that her views carry greater weight in both Paris and Washington, Berlin’s two key alliance partners.”

The Free Democratic Party were the big winners on the night, increasing their vote and returning to Government but there will be a lot of soul searching for one half of ‘the union’ after the CSU recorded their worst electoral performance in Bavaria in the party’s history.

However, the biggest headache in Germany belongs not to Merkel or the CSU, nor the revellers celebrating the end of Oktoberfest in Bavaria but to the SPD who have suffered their worst defeat since the formation of the Federal Republic of Germany – an electoral decline of just over 11 percentage points. Not only did the SDP face the problem of defending their grand coalition with the CDU/CSU to the voters but they have also faced a huge challenge to their vote from both ‘die linke’ and the greens.

One interesting thing to arise from the election results is the emergence of a genuinely competitive 5 party system in Germany between the CDU/CSU, FDP, SPD, Greens and die linke.

But the future belongs to Merkel, the daughter of a Lutheran Pastor, who has the opportunity to reassert German influence in Brussels, Paris and Washington and to steer a sound economic course for Germany in the years ahead. It’s back to the future for Merkel. A CSU/CDU coalition with the FDP is nothing new for German politics after Helmut Kohl’s 16 years in power with them.

Love him or hate him, regardless of what you think of Alistair Campbell he is a genius when it comes to political communications, strategy and presentation. His blog is always a great read.

But that it is Alistair Campbell and not one of Labour’s so called “stars” who are leading the charge against Cameron’s conservatives is a sad indictment of the state Labour finds itself in.

The Conservative party are in such a strong position, both electorally and ideologically, that Labour seem simply incapable of landing any killer blows whatsoever on Cameron and his team. As the respected New Labour pollster Philip Gould once said you either have momentum in politics or you don’t. You are either moving forward or back, never standing still and Cameron’s conservatives are definitely not standing still or moving back.

Thank goodness then for Alistair Campbell…am I right? Or is the genius losing his touch?

Take this recent post from his blog:

“People vote for the future, rather than on the past. But the past is often the best way of signalling what that future holds. This is a country changed for the better, however much media and political opponents say otherwise, and a bit of Barbara’s fight at every level would help get that message across whilst Dave faces up to another series of tough choices looming in his in-tray …

Tie or no tie for lunch at The Guardian?

Vogue or House and Garden for my next big ‘policy’ interview?

Congrats letter to Fabio Capello now, or wait till all qualifiers over?

Good luck message to England women’s team ahead of tonight’s Euros final, or shall we wait to see if they win?

Commiserations with Scotland manager George Burley, or does that risk associating us with defeat?

Find out if Mercury prize winner would like to sit on music task force team.

Should we have a music task force?

Get new Beatles box set. Have them next to CD player next time Nick Robinson pops in for breakfast shots with Sam and kids. Get Tara Hamilton-Miller to do piece of my love for Beatles.

Could we get Paul McCartney onto music task force? Ringo?

Can we blame Brown for SBS/Taliban/kidnap/death story without offending troops or media?

Send flowers to Tara H-M for her lovely piece in Telegraph on how cool I am. Roses or lilies?”

Funny, ha-ha, but if this is the best Labour can come up with then Cameron needn’t worry that much and if that was all Campbell had to offer, I would have been surprised but when I read today’s new statesman I knew that the great spinner hasn’t lost it completely offering a tour de force that leaves no stone unturned. First Cameron gets it, then the media but his most stinging criticism is reserved for those Labour Minister’s whose focus on taking the leadership after  Brown has detracted them from landing blows on the opposition where it really matters:

“This is not just about the media. Labour also needs to do a far better job of getting after him. It is not simply what happens at PMQs that matters, hugely important though those exchanges are in setting the strategic lines for the election. He and his colleagues have to start feeling pressure from every level of the Labour Party. That task would be easier if MPs with an eye on future leadership contests rather than the general elections stopped spreading the message that nothing has been achieved, that the country hasn’t changed, that in effect we have failed. It helps nobody but Cameron. And it’s not true.

People say they don’t like negative campaigning. But there are three planks to any campaign: setting out a forward agenda, defending the record, and attacking your opponents. All are essential. All have to be done with verve and vigour. And on all three, Labour has the makings of a strong position. So, as Andrew Rawnsley has written, if the media won’t do their job properly (I paraphrase here), Labour needs to be even better at carrying out those tasks. Policy. Defence. Attack.”

From past experience, I know exactly what it’s like when the media consensus is irrevocably against you – something Campbell will just have get used to.

I am a big Oasis fan and was gutted, but not surprised, when Noel said he was leaving after another row. Of course my musical taste is stuck in a time warp somewhere around the middle to late nineties!

The Times recently produced a good account of some of the events leading to the split,

“Friends of the guitarist, however, were left with an altogether graver picture. Noel told friends that Oasis would never play a British show again, the implication being that if they could just see out their remaining European festival shows, he could walk away quietly. If Oasis had fulfilled the Paris obligation, they would have had just one more show left to play.

So what happened at Rock en Seine to tip Noel over the edge? Despite occupying the neighbouring dressing room, the New York band Vampire Weekend have kept their counsel, merely hinting at the weirdness of coming off stage following a triumphant set to encounter ugly scenes. The Scottish singer-songwriter Amy McDonald was less discreet: “Oasis cancelled again, with one minute to stage time! Liam smashed Noel’s guitar, huuuge fight!”

Speaking to The Times, a source close to Noel said: “The problems began even before Liam arrived in Paris. He travelled separately from the band, as he does these days, on Eurostar. By the time he got to the venue he was his usual confrontational self. He said things about Noel’s family and made pointed personal insinuations about Sara [MacDonald, Noel’s partner].” What we now also know is that the guitar smashing involved an acoustic guitar given to Liam by Appleton, to which Noel laid waste before walking away.”

For those who mourn Oasis here’s why:

And what we’ve got to look forward to with Noel:

However, the beginning of chapter 4 of the Encyclical really caught my eye because of Benedict’s reflections on the nature of rights. From the Encyclical itself,

“Many people today would claim that they owe nothing to anyone, except to themselves. They are concerned only with their rights, and they often have great difficulty in taking responsibility for their own and other people’s integral development.

“Hence it is important to call for a renewed reflection on how rights presuppose duties, if they are not to become mere licence.

“Nowadays we are witnessing a grave inconsistency. On the one hand, appeals are made to alleged rights, arbitrary and non-essential in nature, accompanied by the demand that they be recognized and promoted by public structures, while, on the other hand, elementary and basic rights remain unacknowledged and are violated in much of the world…

An overemphasis on rights leads to a disregard for duties. Duties set a limit on rights because they point to the anthropological and ethical framework of which rights are a part, in this way ensuring that they do not become licence. Duties thereby reinforce rights and call for their defence and promotion as a task to be undertaken in the service of the common good. Otherwise, if the only basis of human rights is to be found in the deliberations of an assembly of citizens, those rights can be changed at any time, and so the duty to respect and pursue them fades from the common consciousness…The sharing of reciprocal duties is a more powerful incentive to action than the mere assertion of rights.”

These sentiments remind me of a comment made by the British philosopher Onora O’Neill in her book based on the 2002 Reith Lectures ‘a question of trust’ that,

“We proclaim human rights with enthusiasm, but don’t ask whether the rights are compatible with one another, or whether the corresponding duties are feasible.”

The nexus between rights and duties was finds its classical exposition in the work of legal theorist Wesley N. Hohfeld who has provided one of the classic analytical statements of different types of rights. He produced a scheme, which identified 4 types of right (claim, liberty, power and immunity) each of which has a corresponding jural correlative and jural opposite. The jural correlative of a right is a duty.

The Encyclical claims that, “An overemphasis on rights leads to a disregard for duties.” But the wider problem with rights discourse is not fully encapsulated through this statement. An overemphasis on rights does lead to a disregard for duties, but it also leads to an excessive focus on the individual at the expense of the wider society and community around us. This nexus between rights and duties often appears in many communitarian critiques of rights discourse at both a political and philosophical level.

As the philosopher James Griffin states in his wonderful philosophical contribution to the debate on human rights,

“The term ‘human right’ is nearly criterionless. There are usually few criteria for determining when the term is used correctly and when incorrectly – and not just among politicians, but among followers, political theorists and jurisprudentialists as well. The language of human rights has, in this way, become debased.”

Connecting rights with duties can mitigate against some of the worst excesses of rights discourse but duties themselves do not set limits on rights – they might bring some measure of analytical or philosophical clarity but that doesn’t solve the indeterminateness of human rights themselves.

Just because you connect rights with duties doesn’t stop the expression of an endless list of socio – economic, political and moral claims using the language of rights.

Rutherford’s reckoning

Graham Kings on the future for Anglican Conservatives

Interview with Dizzie Rascal from today’s observer

What type of Chief Justice is John Roberts?

Brilliant piece by Paul Krugman on how the economists got it so wrong from NY Times magazine

Adam Rutherford on faith healing

David Cameron as Prime Minister

IDS on dysfunctional families

Professor Dworkin on the Sotomayor Senate hearings

John Cruddas on Labour’s crisis

4 types of progressive thought

The strange triumph of Chris Moyles

Not the usual Tory candidate

Bobballs rightly lambasts his paper of choice for printing the article in the first place whilst chekov subjects Walsh’s piece to rigorous critique particularly picking Walsh up on some of the misrepresentations contained in the article.

Here’s my thoughts on the piece…

Unionism in Northern Ireland, as a tradition of political thought, has had its fair share of detractors over the years. Indeed, more often than not, Unionism has been portrayed by its political opponents on these islands, as a profoundly back – ward looking, regressive and incoherent tradition of political thought.

Unionism hasn’t done itself any favours either and there is no doubt that at many points in the contemporary history of Northern Ireland, Unionism’s political representatives have been guilty of scoring intellectual own goals and guilty of finding themselves in a condition of ideological stasis – motionless and unable or unwilling to articulate, in a coherent fashion, what Unionism in Northern Ireland stands for.

This led one sociologist who has reflected on the nature of Unionism to contrast the “accomplished ideological combatants” of Irish nationalism with the “inarticulate and introspective” ideology of unionism.

But, despite these problems, within the tradition of unionist political thought there remains a coherent set of ideas capable of meeting the challenges of a globalised, dangerous and highly fractured 21st Century world. As the Dean of Belfast Cathedral said once in a sermon “Carson’s vision of the union with Britain being maintained and strengthened, is every bit as valid morally, economically and socially as it was a century ago.” How true a sentiment?

The history of Northern Ireland, like other places, is fertile ground for the emergence of myths and legends clothed as truth and fact. Indeed, in his authoritative and deeply commanding study of the history of Ulster Jonathan Bardon said that, “It has often been observed that Irish history, even from the earliest times, is current affairs. Whatever the truth of that statement, it cannot be denied that popular historical memory in Ulster is particularly long and that growing conditions for the cultivation of myths are particularly favourable there.”

Jason Walsh’s recent piece for Comment is Free on Ulster Unionism’s identity crisis certainly appears to be one such place where myth and legend are clothed as truth and fact.

There is a profound difference between engaging critically with the subject and being negatively critical of the subject.

Unfortunately, Jason has chosen the latter and in doing so has merely reflected the stereo – types, caricatures and accusations that have been thrown at Unionism throughout the years by many an Irish Nationalist commentator.

Unfortunately Jason’s piece is based on a number of questionable assumptions about the character of unionism and questionable observations about contemporary politics in Northern Ireland, particularly about the vibrancy of Irish Republicanism as represented by Sinn Fein.

Jason claims that the future belongs to Irish Republicanism. A passing glance at the pages of An Phoblacht in the aftermath of the recent European election would certainly dispel that myth.

The strategic signposts for the direction unionism should take outlined by Robert Ramsay are an interesting contribution to the debate on the future of unionism but making observations about the coherence or future of unionism based on Ramsay’s book is a bit like the centre – left in Britain taking seriously the views of Tony Blair’s former Chief of Staff, Jonathan Powell on the future of social democratic politics after Labour are defeated at the next election.

Bob has taken much exception to Jason’s argument. As he points out, Jason’s concluding observations about the extent to which unionism is merely anti – Irish “doesn’t do anyone any good. It adds nothing, it explains nothing. The piece is about the cultural identity of Unionism, but it’s seems devoid of any understanding, empathy or appreciation of the complexity of identity etc.”

Unionism in Northern Ireland presently finds itself in as strong a position as it has ever been in. Unionists are exercising political power in a locally elected devolved institution within the UK and in constitutional terms, Northern Ireland’s uncertain place within union, after a period of violent conflict, has been injected with a measure of certainty through the amendment of Articles 2 & 3 of the Irish constitution and through the legal entrenchment of the consent principle whereby the constitutional position of Northern Ireland will remain a matter for the people.

Those who, in the past, may have questioned the legitimacy and authority of the Northern Ireland state and opposed its very existence have been reconciled to its constitutional status as an integral part of the United Kingdom.

Reaching this point has not been an easy journey for Unionism, both intellectually and politically. The constant round of negotiations, debates over implementation of the Belfast Agreement and external pressures from the British & Irish Governments and from Irish Republican’s reluctance to engage faithfully in the political process from the outset have left deep intellectual and political scars on a noble political tradition.

But, Unionism has always been capable of embracing a range of ideas, opinions, political outlooks and classes. Its strength has been its diversity and the range of ideas that can be articulated under the political umbrella of Ulster unionism.

There will always be differences of opinion within unionism itself about the nature of unionism but as the philosopher Alasdair MacIntyre tells us, “a living tradition…is an historically extended, socially embodied argument and an argument precisely in part about the goods which constitute that tradition.”

Unionism is a living tradition where healthy and vibrant debate about its future should be welcomed. But this debate should not be reduced to the caricature and mere repetition of ancient stereo – types like Walsh has done in this article.

Our sarcastic generation

Tom Daschle on health care reform

Charlie Brooks on food production

After Chappaquiddick

Noel Gallagher leaves Oasis

Adam Rutherford interviews Nicky Gumbel