Thursday, 29 October 2009

Rights and duties

It may seem strange, but human beings haven’t always had rights. Certain things we would look upon as rights, such as equality of treatment for all under a Common Law, were laid down as early as Magna Carta, but the idea that there should be some inalienable certainties as to what any human being can expect was formalised in the 17th and 18th centuries by such philosophers as John Locke and Adam Smith, and in such legal documents as the English Bill of Rights. Rights were deemed to provide protection for the individual from unwarranted harm or intrusion by the state and/or sovereign. Therefore one could have a right to the private enjoyment of one's home, or a right not to be tortured or killed for no reason, or a right to defend oneself from aggression. Such things are within the power of society to grant as absolute guarantees. Often they are to do with the inaction or non-interference by others in the freedom of an individual or group. The original spirit of the definition of ‘rights’ was very much concerned with protecting the freedom of the individual to live unmolested in the pursuit of happiness.

The Bill of Rights (1689) is a good example of actual rights - or at least the part of it that deals with the "rights and liberties of the subjects ... of the Crown." This provided such things as a legal right to freedom from royal interference with the law; the freedom to elect representatives without royal interference; or freedom from taxation by Royal Prerogative. Again, note the abounding use of the word 'freedom'!

However, some of the things which have been given the title of ‘rights’ in the last few decades, often in impressive sounding documents like the United Nations Declaration on Human Rights, are not truly rights. No one can guarantee that a person stays healthy, nor that they become educated (you can provide an education, but you can’t force someone to receive it!). Thus it is meaningless to say that they have a right to a public health system or to a right to education. It is more correct and more helpful to look at these things in terms of duties – the duty of the state to provide a health care system, or of a parent to ensure a suitable education is provided for their children (in school or otherwise). Duties are things which a society together agrees are important and decides to create systems to ensure ther provision.

The idea of rights has been further diluted recently of course, with the increasing subversion of our language by commercial interests. We now have a 'right' to choice (whether it be a choice of which school to send our child to, or of which deodorant to use) and a 'right to know' (what Monsanto are up to, or where your teenage son goes on a Saturday night). Some people are even trying to say that everyone in the country has a right to broadband and a right to a TV signal. This is obviously nonsense.

My reason for bringing this up is that the government has gone out of its way in the home education debate, as well as in the inception of the home-school contract, to talk about "parents' rights and responsibilities" and "children's rights" as if they are mutually exclusive things. We see again and again members of the government and their representatives and allies talking about the conflict between a child's right to receive an education and the parent's right to choose the method of that education. This is at best unhelpful, and at worst utterly meaningless and intentionally misleading. The whole subject of education is mapped out in legislation in terms of duties: The duty of the parent to ensure a suitable and efficient full-time education for their child in school or otherwise (Section 7 of the Education Act 1996). The duty of the Local Authority to serve notice on the parent requiring satisfactory proof of suitable education if it appears to them that none such is taking place (Section 437 of the same Act).

In 2006 a duty was introduced for Local Authorities to establish which children in their area are not receiving a suitable education (Section 4 of the Education and Inspections Act 2006, which introduced a new Section 436a into the 1996 Education Act). This same revision says that it does not apply to children elected to be educated at home by their parents. Even so, it is this new responsibility, born from the assertion in the Every Child Matters agenda that every child has a 'right' to education, which has caused Local Authorities to grow ever more confused about what constitutes home education and their responsibilities towards children being home educated. It is then easy to see that the invention of a 'right' by politicians has led to a corresponding and confusing duty for civil servants, which has in turn led to the recent attempts to severely curtail people's freedom from state interference with their own and their children's lives.

The same 'right' rising from the same agenda has led to the criminalisation of parents who fail to stop their children repeatedly truanting. The test of a right, in my opinion, is that it enables freedom. Something that results in parents being jailed cannot truly be called a right.

The reliance in law on duties is entirely correct and intentional. The recent inclusion in the national conversation about education of newly minted 'rights' only serves to muddy the waters and to set up impossible tasks for parents or Local Authorities to fulfil. Only by returning to the original definition of what constitutes a right can we free ourselves from much of the very emotive and extremely divisive baggage that surrounds such issues as educational choice, discipline, philosophical and religious freedom, and much else. Then we can return to the premise that has held sway for hundreds of years: that the parent is best placed to know the needs of their child and to have the task of providing for those needs, and therefore is best placed to be the primary guardian of and advocate for their child. The state's role would then more obviously be as it should be: to provide structures through which the parent may, if they choose, fulfil their responsibilities, and to provide assurance for the child that they will be protected and aided should their parents, through malice or misfortune, fail in their duties.

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