The European Commission - or at any rate its justice arm - is big on rights.
Justice commissioner Viviane Reding has recently published two important packages covering, first, suspects’ and defendants’ rights (the so-called Measure C, which will give the right to a lawyer anywhere in the EU from the first stage of police questioning), but also victims’ rights.
Rights are a good thing, but interestingly, in this particular case they might clash.
The Law Society has already responded to say that it is concerned that certain of the victims’ provisions ‘are inconsistent with the presumption of innocence and the right to a fair trial’.
This leads me to reflect on where we are heading with rights in general.
If I can give a potted, amateur history - please forgive me, academics who study this field in depth - we began to use the language of individual rights after the French Revolution (from 1789).
There was Thomas Paine’s The Rights of Man (1791) and Mary Shelley’s A Vindication of the Rights of Women (1792).
After that, basic rights were struggled over violently, and came very gradually.
For instance, for something as basic as the right to vote, there was the Reform Act (1832), and then the granting of votes to women in 1918 and 1928.
The right to a pension and unemployment benefit came in 1908-1911, and obviously other welfare rights, including the right to legal aid, in the immediate postwar period (1945-1951).
Since then, rights have come thick and fast.
It seems part of human nature that, once we have started down the road, there can be no end to the call for more rights.
Just when you think that all possible rights have been satisfied - employment rights, ethnic minority rights, gay and lesbian rights, the right to die, animal rights - there are calls for more.
My own political persuasion is to support this wholeheartedly.
I favour more and more rights (and I realise that they fall in several different categories: economic, social, religious and so on).
But does it end one day? And if so, where and how?
We have been discovering that the financial aspect of rights is being eroded substantially and sometimes abandoned, because we can no longer afford them.
The right to medical treatment free at the point of need; the right to retire on a good pension at 60 or 65; and of course, the one which concerns us directly, the right to legal aid – are being eroded and sometimes removed.
As we know, this is likely to grow worse over the coming years.
We are becoming poorer as a country.
We also know that some rights are impossibly expensive to enforce, or are just unenforceable.
The right to privacy - for those famous enough to need it - can only be enforced through expenditure of hundreds of thousands of pounds.
Then technology comes along and undermines it anyway.
But my question is: does society reach a point where it is saturated with rights and can take no more? Is there an optimal point where we can say ‘that is it, we have reached the ideal state - any more rights and we have tipped over into the situation where society will now begin to deteriorate?’
It may seem strange to talk about deterioration when the point of rights is to improve the position of individuals.
But I think the following problems are raised by ever more rights for individuals:This is a question for us as lawyers.
- the rights begin to clash more - take the cases we read about, involving religious symbols at work or in the courts, or the clash between free speech and privacy, or indeed the one I began with, between victims’ and defendants’ rights;
- the resolution of those conflicts leads to uncomfortable questions, already being discussed, as to who is responsible for resolving them - unelected judges who come from a narrow category of citizenry, or elected politicians who may be unwilling to resolve them, as in the case of the free speech/privacy clash;
- for some basic rights there are cheap tribunals established to resolve claims (for instance, welfare, employment, housing and immigration rights), but for the rest, if there are too many, they will become effectively unenforceable through being too expensive; and
- generally, if there is a glut of rights, they are devalued and begin to lose their very characteristic of basic rights, as with any other glut.
The number of lawyers has tripled over the last few decades, partly (but by no means only) as a result of the social engineering which has produced more rights for everyone.
We have become used to the language of rights, but I wonder whether it is the correct language for the future, particularly now that rights with big financial costs are heading into the sunset.
It is a question for the EU especially, which has fashioned its identity on the harmonisation of rights (the right to free movement of goods and services being the most obvious), which has often meant the introduction of new rights in the member states.
What would happen to the EU if there was sudden agreement that no new rights should be introduced?
And then there is the changing nature of global power. Both in the times of our own ascendance, and during the American century, we were dealing with governments which claimed that they were established on rights, and so listened - sometimes reluctantly – to arguments clothed in that language.
But, as we know, arguments about rights bounce off the Chinese government without effect.
I have raised many questions, and provided no answers.
That is because, when you have been educated as I have in the language of rights, it is very difficult to learn a new language, and to see which way the future will unfold.
But I think now is time to start thinking about it.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies.
He blogs weekly for the Gazette on European affairs.