UK Liberty

Jack Straw on liberty

Posted in politicians on liberty by ukliberty on October 29, 2007

Jack Straw, Minister of Justice, lectured on liberty last week.

Some points:

On 20 July 1950 FCO Minister Kenneth Younger stated that the European Convention in which these rights were enshrined “contains a definition of the rights and limitations thereto which follows almost word for word the actual texts proposed by the United Kingdom representatives”(2)

We led the negotiations, we led the drafting, we led the way in Europe. The Convention rights have a long British pedigree, rooted in the Magna Carta, the 1689 Bill of Rights and habeas corpus and can be read as a manifestation of the values that were already deeply embodied in our common law.

It is difficult for us today from the comfort of 60 years hence, to understand completely the abject horrors of Nazism, nor to comprehend fully the egregious human rights abuses which, for more than 40 years after the war were kept hidden behind the Iron Curtain.

It is hard for my generation, it is still more I suggest, for later ones, to come to terms with the fact that humankind was capable of such organised evil, or really to appreciate the sense of utter powerlessness which so many millions felt, and had to experience in the face of it.

This is particularly true from a British perspective, when for centuries we have been spared the ordeal of totalitarianism, occupation or revolution. Our history has been the story of the growth of an enabling not repressive state.

Perhaps why we seem to be unconcerned about the loss of our liberties.

However, elsewhere in Europe during this period, we have seen more seismic developments with first the collapse of fascism in Spain and Portugal in the 1970s; the banishment of the military Junta in Greece; 1974, the fall of the Berlin Wall; 1989, the demise of the Soviet Union; 1991; the Balkans throughout the 1990s for many across Europe, who had been denied until recently the liberties which we in the UK have long taken for granted.

Europe is now a very different place. As a result, Europe has become wealthier, stronger, safer and more secure. There is common recognition that prosperity and security derives from sharing common purpose. Lord Steyn put it well: “Observance of human rights is instrumentally valuable. It tends to promote the conditions in which democratic systems can flourish for the benefit of people generally”(3).

The ECHR has been incorporated into the law of 47 states across Europe – East and West by one means or another. A shared human rights culture is something that helps bind us together, and provides a common set of values around which Europe can unite.

In spite of advances in Europe, the “old” threat to humankind, from authoritarian regimes in functioning states, still remains in other parts of the world – as is clear today in Burma. There are still too many examples where such states deny basic rights to their own citizens, and pose a threat to their immediate neighbours and the region.

Now, on top of this there are new threats which derive not from the organised political despotism of a Nazi Germany, an Imperial Japan, or a Stalinist Russia but from terrorists operating internationally and typically based in failed, failing or rogue states.

In the parlance of diplomacy, these non-state actors operate outside of the moral and legal parameters that define how democratic societies operate and by which every other state is judged and may have its behaviour moderated. These groups exist without regard for life, the rule of law or human rights. They are bound neither by law nor ethics; the cornerstones of how a democratic society has to respond.

I wonder what criminals and terrorists are bound by law or ethics?  Is he thinking of gentlemen thieves, perhaps?

The threat from Al-Qaida-inspired terrorism is wholly asymmetrical; our diplomatic, military, security, law enforcement and legal/judicial systems were never designed to counter it. It has made it harder to protect our citizens.

Yes, states across the globe have had to deal with terrorism on a significant scale throughout history but what characterises the current threat is its truly international scope: foreign nationals operating from a second country,

the PIRA, based in Ireland? –

funded from a third,

the United States of America, Libya, etc? –

attacking a fourth,

the United Kingdom? –

its aims, the methods and technologies used, the scale of its murderous ambition. Despite the considerable efforts and achievements of the intelligence, security and law enforcement agencies it is the unpredictability of international terrorism that creates a sense of fear and instability very different in character and scale from that experienced for example –  in this country from the Provisional IRA,

– oh right, sorry reader.  Even though the PIRA meets all his criteria, new terrorism (new Labour!) is different from wot they did –

or in Spain, from ETA.

Not sure ETA have ever attacked the UK, or how much funding they receive from outside of Spain, but they certainly have killed a number of innocent people, and don’t seem to be bound by laws or ethics (as I understand them) either.  But there you go.

Governments must act to protect life, and laws must change to meet the imperatives of national security. This is not the lecture to discuss the fullness of our counter-terrorism response, but suffice it to say the statute book has and must play an integral part. Our counter terrorism legislation looks to strike a balance between the tensions, from public safety on the one hand and the liberty of the individual on the other, within the framework of what is proportionate and legitimate. But a central point of my thesis is this evening is that far from undermining how we strike that balance in the new situation, a human rights framework used intelligently – can help us resolve these tensions. This is exactly what Winston Churchill intended and British officials achieved when they drafted the ECHR.

Let me give you a familiar example of this tension in operation; the issue of the deportation of foreign nationals. Following the decision of the European Court of Human Rights, in Chahal vs United Kingdom (1996), it has not been possible to deport certain individuals, including those who may be guilty of serious crime or terrorism offences, to countries where there is a real risk of torture or death.

To be pedantic, it is possible, and indeed it happens (also this).  What he means is, it is not possible to do it lawfully.

The tabloid press and the Opposition

and Government Ministers

often cite this as an illustration of how regard for human rights puts the liberty of individuals, in this case particularly undesirable individuals, above the safety and interest of the wider community.

It is perhaps worth noting that the minority view in Chahal was that if there was “substantial doubt” as to the risk of torture, the threat to national security might justify the deportation.

Now there is indeed a live issue as to whether the appropriate test is a real risk, or, for example, substantial grounds whether in a particular instance, concerning these suspects of this particular nationality, the risk they would in practice face is a high or minimal one. There are often found to be genuine and honourably held differences of opinion on what would happen if and when that suspect were deported to his home country. It is one reason why I when Foreign Secretary, and the government now generally, has been instrumental in securing Memoranda of Understanding with such countries better to guarantee and monitor the safety of deportees.

But I do not believe I cannot believe- that anyone is seriously proposing that we should ignore the risk of harm even where this risk is incontrovertibly high and well evidenced, and so effectively out-sourced the prospect murder or torture.

Really?  Tony Blair, former Prime Minister did – indeed he thought asking for assurances that people wouldn’t be tortured was “a bit much”.

Furthermore, his private secretary wrote to the FCO, “if the courts rule that the assurances we have are inadequate, then at least it would be the courts, not the government, who would be responsible for releasing the four from detention” – outsourcing the blame.

The principle against this was firmly established in our common law and in our system of values long before the incorporation of the ECHR into domestic law. It was the world’s first Bill of Rights the 1689 British Bill of Rights which outlawed cruel and unusual punishment and it was this prohibition which was absorbed into modern human rights treaties.

Consider for a moment in the counter-factual. Consider the outcry if a British Government wilfully and knowingly did deport someone to gross ill-treatment or death in a foreign country.

Sadly not many people seem to care, so there isn’t much of an outcry.

What Home Secretary, what Prime Minister would sign away the life of another to return to certain torture or judicial murder?

Tony Blair, see above.

What sort of society would we be living in if such a decision was deemed acceptable? What law could wash the blood from their hands?

Ask Tony.

The harm to our international standing would be irreparable, the damage to our values fatal. If we are to enjoy the benefits of a liberal democracy, if we are to continue to live in a prosperous, fair and free society we have to recognise that we must adhere to the letter and the spirit of human rights. The price we must pay for freedom is not to debase our values.

Well said!

A pity it’s inconsistent with the rest of his lecture, for example the very next sentence!

We will do our utmost to secure the safety of the British people, and we all have to be  prepared to limit individual liberties to the extent that is necessary. We have human rights and an independent judiciary to establish and marshall the lawful boundaries of our response.  We do not need to resile from the ECHR nor the HRA. They already provide us with a framework in which to address security as well as liberty. Indeed the ECHR places a duty on the state to protect the right to life of everyone in its jurisdiction. Where we have problems with the interpretation of the Convention by the Strasbourg Court, the proper course is to argue the issue robustly before that Court as we have recently done in relation to the Chahal issue, and not alone: rather in concert with Italy, Lithuania, Portugal and Slovakia.

Oh, so Lord Falconer’s isn’t the proper course, then – he said in 2005 that “I want a law which says the home secretary, supervised by the courts, has got to balance the rights of the individual deportee against the risk to national security. That may involve an act which says this is the correct interpretation of the European convention.”

…People are more independent, more empowered, but it poses problems too, especially when viewed in the context of liberal democracy. As Meg Russell has said:

It is difficult to find anything more antithetical to the culture of politics than the contemporary culture of consumerism. While politics is about balancing diverse needs to benefit the public interest, consumerism is about meeting the immediate desires of the individual. While politics requires us to compromise and collaborate as citizens, consumerism emphasises unrestrained individual freedom of choice. While politics recognises that there are always resource constraints, modern consumerism increasingly encourages us to believe that we can have it all now.”(10)

The problem of this at times solipsistic approach, when applied to human rights, is that it distorts the way that people look upon those rights. To an extent, they become commoditised, yet more items to be ‘claimed’. This is demonstrated in how some people seek to exercise their rights in a selfish way without regard to others – which injures the philosophical basis of inalienable, fundamental human rights. Alongside that, some people resent the rights that are afforded to fellow humankind- we see this is in the media uproar around human rights being a terrorists charter or there for the benefit of minorities alone.

Sadly something not helped by Government Ministers.


Notably however, the Act has not become an iconic statement of liberty like the US, or South African Bills of Rights. Perhaps this is because our statements of rights have been the production of evolution and not revolution.

We have not had to struggle for self-determination or nationhood, nor have we been torn apart by social strife, or had to fight bitterly for equality as in South Africa.

Do we in Britain value these rights less as a result? I don’t think so. …

I do.  I think it’s a natural consequence of not having to fight for them, nothing malign.

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4 Responses

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  1. Rendition, the movie « UK Liberty said, on October 30, 2007 at 4:39 pm

    […] libe… on Disinformation and the Freedom…Gordon Brown on libe… on More secrecy, Darling?Jack Straw on libert… on Ministers told not to use huma…There is a case for … on That settles it! « […]

  2. Brian Barder said, on October 30, 2007 at 11:28 pm

    Considering what an illiberal home secretary Jack Straw was, I find this lecture utterly sickening. This is the man, also, who as foreign & commonwealth secretary received the formal advice from his FCO legal advisers that an attack on Iraq without explicit UN authority would be an act of aggression, but who (according to Blair) passed this on to neither Blair nor the cabinet; who ignored the advice of his diplomatic staff that an attack would be disastrous; and who went ahead anyway with Blair in endorsing and promoting it instead of resigning. The man is a weather-cock of infinite flexibility who will rotate smartly in response to every passing breeze. He must have sensed that Liberty is in the air this month. Yuk.

    Brian
    http://www.barder.com/ephems/

  3. ukliberty said, on October 31, 2007 at 1:37 pm

    I was just reading through one of the control order Lords judgements published today, and came across this:

    “On his appeal to the Court of Appeal the Secretary of State [Charles Clarke, I think] contended, as he was bound to do, that the judge had erred in law. He identified (para 7 of the Court of Appeal judgment) five errors of principle : that the judge had identified liberty too broadly, as freedom to do as one wishes;”

    Says it all really, when a Home Secretary doesn’t believe liberty means the freedom to do as one wishes…

  4. […] minister was Jack Straw, by the way.  You know, that great defender of liberties. Indeed the Crown may be doing something that, if she only knew the true position, she would prefer […]


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