In the round-up for 31 May I wrote that I was always very suspicious of appeals to “common sense’, a phrase that I always tend to regard as a synonym for “unexamined prejudice”. Though it was just a throwaway remark, it prompted an e-mail from a reader who said that it had reminded him of Mr Justice “Ollie” Oliphant in Rumpole of the Bailey: “A judge”, says Wikipedia, “whose affectations of Northern bluntness and ‘common sense’ drive Rumpole to distraction.” So, though I’m deeply flattered to be compared, however distantly, with the great John Mortimer’s alter ego, I thought on reflection that a little unpacking might be in order.
In February 2007 the then Lord Chancellor, Lord Falconer of Thoroton, used the Harry Street Memorial Lecture at Manchester Law School to launch a Government campaign entitled ‘human rights: common values, common sense’. In the course of ‘Human Rights and Common Sense’ he managed to use the expression “common sense” thirty-five times. His argument, in short, was this:
“[F]rom time to time, in any area, a human rights problem will occur. When it does, those dealing with it need to adopt a common sense approach. Yes, they need to apply the law. But my argument is that the law, the Human Rights Act, is common sense. So when they do apply the law, they must then be applying common sense. And coming up with a common sense answer to their human rights problem.”
At the same time, the Ministry of Justice launched Making Sense of Human Rights.
Marcel Berlins commented favourably in The Guardian at the time; but I can’t say I was very impressed, however laudable the aims of the campaign might have been. Nor am I any more impressed in retrospect. The concept of human rights and the United Kingdom’s continued adherence to the ECHR certainly need to be defended: but mere assertion unsupported by evidence does not advance the case and, as it’s turned out, both the Act and our adherence to the Convention are now under pressure as never before.
Rather than trying to link “human rights” to “common sense” I would be inclined to argue the contrary: that neither the law in general nor the concept of human rights in particular is at all simple and one shouldn’t expect them to be – but that that does not in any way lessen their importance. Both are often about applying fairly complex concepts to difficult factual situations and making very fine distinctions both of legal analysis and of fact as one does so. Take, for example, two fairly recent cases in the Supreme Court: one with a very strong human rights element and another in which Article 9 was pleaded in the Court of Appeal but not before the UKSC.
In Doogan & Anor v NHS Greater Glasgow & Clyde Health Board  ScotCS CSIH 36 an Extra Division of the Inner House had held, unanimously, that Mary Doogan and Connie Wood, labour-ward coordinators at the Glasgow Southern General Hospital, could properly invoke the conscientious opt-out in s 4 of the Abortion Act 1967 so as not to have to supervise ward staff involved in abortions. Lady Dorrian had justified a wide interpretation of s 4 because “it is recognised that the process of abortion is felt by many people to be morally repugnant …” . In Greater Glasgow Health Board v Doogan & Anor  UKSC 68, however, the Supreme Court took precisely the opposite view: in the sole judgment Lady Hale DPSC interpreted s 4 narrowly and allowed the appeal. In the view of the UKSC, for the purposes of s 4, to “participate” meant “taking part in a hands-on capacity” . Mere supervision was not enough.
In President of the Methodist Conference v Preston  UKSC 29 the Court reversed the unanimous decision of the Court of Appeal that Mrs Haley Preston, Superintendent Minister in the Redruth Circuit, had employment rights under s 230 Employment Rights Act 1996 and restored the original order of the Employment Tribunal dismissing her claim for constructive unfair dismissal. The decision was taken by four votes to one (Lord Hope DPSC, Lords Wilson, Sumption and Carnwath JJSC: Lady Hale JSC dissenting). Lady Hale’s view was that “[e]verything about this arrangement looks contractual”  – but her colleagues disagreed. (In the Court of Appeal the Methodist Church had pleaded Article 9 in relation to its understanding of its relationship with its ministers but the point was not pursued before the UKSC.)
So here we have two law and religion cases in which very senior judges managed to come to completely opposite conclusions on complex sets of facts: in Doogan, three judges in the Inner House disagreed with five judges in the UKSC, while in Preston, when one takes into account Lady Hale’s dissent the split was four against four.
Difficult? – certainly. Appeals to “common sense”? – I don’t think so. Surely the better approach is to ask critics “So just which human right would you want abolish?” then wait for the answer…
The late award-winning columnist for the Chicago Daily News once observed, “Common sense is an uncommon virtue.” I recall reading that column, and the bon mot has stuck with me across the decades.
“Common sense” in the political and polity worlds means something like, “what I want but cannot defend.”
I think part of the problem is that while human rights are a Golden Rule sort of thing – a list of things that we all don’t want other people to do to us – the problem comes when you start trying to be specific.
When you’re looking at genocide, things are pretty clear cut. Killing a whole bunch of people just for being a particular race is wrong. We can all agree on that, pretty much.
We can all agree that being made to participate in an act we believe is morally wrong, is also something we would like to avoid. So far, so simple – so common sense.
Part of the problem in putting this into practice is that we don’t all have the same ethical standpoint (and, more cynically, everything becomes more acceptable when it’s happening to someone else). I can see that a committed Catholic might conceivably consider that assembling the duty roster for procedures that include termination of pregnancy is right up there with assembling the duty roster for the gas chamber: in both cases, a human being is killed.
Yet at what point does it become necessary to tell someone to either obey orders or get out? Tom Lehrer put it rather well, “If you take the various popular song forms to their logical extremes, you can arrive at almost anything from the ridiculous to the obscene, or – as they say in New York – sophisticated.”
That appears to be the problem we are having with human rights in the UK – the logical extremes. In some ways, that’s a good thing. If we’re having a problem with a nurse who doesn’t want to assemble rotas (though it’s part of her job to do just that), we’re probably not having a major issue with genocide, or having people thrown into jail because the government finds them inconvenient.
The extremes mean that the “common sense answer” isn’t so clear cut after all – and so we have high-powered judges disagreeing on what that answer is.