Where left and right are getting it wrong on civil liberties - and how an approach that places civil society at its heart could be the answer
At a debate last year that pitted Red Tory against
Blue Labour proponents, moderator and political philosopher John Gray noted that the period leading up to this election, more so than any other period in modern British history, has been characterised by a serious engagement of the political class with ideas. Not since the Thatcher administration's courtship of the Chicago School has any alternative ideological settlement been genuinely broached by either of the ruling parties. While
some bemoan the return of big ideas to politics, a coherent set of principles to rebalance society and the state has seldom been more important.
However, notoriously absent from the forefront of our idea-rich political debate has been the future of civil liberties in Britain, which conceptually demarcate the legitimate frontier between the state and society. Never has there been more need for an examination of the British tradition of civil rights, which has come under attack on at least two fronts during the New Labour tenure.
On the one hand, the Human Rights Act 1998,
trumpeted by Lord Falconer for “bringing home” the European Convention on Human Rights, embedded the distinctly Franco-American account of natural rights into British Law. On this account individuals have rights that precede and sit outside of political definition and law; men are born free, society chains them.
This view of prepolitical rights is diametrically opposed to the British tradition of liberty; it is an account rejected by British political philosophers like Bentham and Burke and constitutionally by the doctrine of parliamentary sovereignty. To get around this constitutional incongruity, the Human Rights Act left the sovereignty of Parliament intact on paper, limiting the judiciary to issuing the government compliance notices where legislation breaches rights. As Lord Falconer notes, with pride,
“Although the government can in theory refuse to repeal offending legislation, it has never done so in practice. The effect of incorporation has been to set legally enforceable, domestically unchangeable limits beyond which the state cannot go – the most significant protection of an individual's rights for many decades.”
The other side of this coin has been that, with individual rights secured in principle, successive Labour Home Secretaries have set about restricting liberty in practise – as if to give justification to the Act retroactively.
The length of time that an individual can be held without charge by police serves as an illustrative barometer for civil liberty. In the Terrorism Act 2000 this increased from four days to seven. The Criminal Justice Act 2003 extended this again to 14 days. The Terrorism Act 2006 extended it yet again to 28 days. The defeated Counter-Terrorism Bill 2008 had sought to extend it again to 42 days, if not 90.
Those same bills introduced wide-ranging police stop-and-search powers, effectively banned protests in front of Parliament, allowed the banning of vaguely defined terrorist organisations and created the offence of glorifying terrorism, while intermittent Acts introduced council snooping powers, selective control orders, universal ID cards, trial without jury, profligate DNA collecting and on and on.
Despite the Government's woeful record on civil liberties, the Conservatives have been for the most part silent on their substantive views towards this crucial issue. As
Francesca Klug notes, it remains unclear how the promise for a British Bill of Rights will redress these faults. There is little discussion from the right of rescinding Labour's more illiberal laws, and then-Shadow Home Secretary David Davis' principled-if-confusing resignation over 42 days was treated with indifference or embarrassment by the Tories.
The situation of liberty beyond politics has come hand-in-hand with a body of representatives who feel little responsibility to uphold those same liberties for their constituents. More worrying is a population that, though clearly worried about the safeguarding of rights (see the informative
State of the Nation Survey commissioned by the Joseph Rowntree Foundation), appears to feel there is little point organising politically or demanding answers from their representatives.
This raises serious questions about the reciprocal relationship between civil liberties and social capital, which ResPublica will pursue in our new stream of work around Liberty and Innovation. Are our rights better safeguarded by a strong judiciary than by a strong society? What impact does an individualistic culture of rights have on social capital and political participation? And, most importantly, is a new settlement possible that can reverse the assault on British liberty?