Who can we trust with our liberties?
People sometimes discuss (example) whether Labour or the Conservatives are the most trustworthy with our liberties, particularly in relation to recent proposals for a so-called British Bill of Rights (and Responsibilities, in Labour’s case).
I suggest anyone rational who has paid attention over the last eleven years would think that, out of the two, the Conservatives are certainly the least worst. Hansard and the voting record seems to show that.
It seems to me that in opposition they stand with the Liberal Democrats in opposing every objectionable Labour proposal. Labour’s army of drones have of course managed to push a lot on to the statute books, but not without a fight. That said, we must not forget there are 20-30 rebellious Labour MPs who consistently fight for liberty against their leaders.
It seems the Liberal Democrats tend to be unequivocal in opposition. The Conservatives seem to initially play along but oppose when they hear the detail, particularly if it involves attacks on our traditional principles (the presumption of innocence, the rule of law, habeas corpus, fair trials, the distinctions between executive and judicial functions and so on). I don’t believe the Conservatives support totalitarianism nor do they seem to support the arbitrary exercise of executive power, which both seem tacitly, if not implicitly, supported by Labour, who seem nakedly populist to boot.
Now, in terms of ‘civil liberties’ what we have, or should have, at the most fundamental level, is an inalienable freedom from unlawful interference. And for any interference to be just it must be necessary and proportionate, not merely an interference made lawful by legislation drafted and voted through by Parliament.
This covers freedom of expression, freedom of assembly, freedom of movement, freedom from detention, freedom of conscience and so on. Freedom in general – our liberty. And we have the freedom to do anything that has no
By extension we have a right to challenge interferences with our freedoms; we have a right to challenge the lawfulness of our detention, for example (the right to a writ of habeas corpus, or Article 5 European Convention Human Rights), and the burden is (or should be) on the authorities to prove that it is not an arbitrary use of power or abuse of process but a lawful, necessary and proportionate detention. We have a right to a fair trial, not before the prosecuting authority but before a neutral and informed decision-maker. We have a right to challenge restrictions on speech, expression, protest and so on.
Parliament should be cautious about the powers it grants to the Government. Too much legislation nowadays is enabling legislation – this is where the primary legislation that Parliament has passed gives the Government the power to grant itself more power via secondary legislation, which it doesn’t need to trouble Parliament with.
Furthermore the Government should not be able to launder policy (as opposed to troubling Parliament with it) via(for example) taxpayer funded private companies (and therefore exempt from the FOIA) such as the Association of Chief Police Officers, funded by Home Office grant, which is used to launder DNA, fingerprint, and sample retention policies, the protester database, and the ANPR; nor should it be able to launder policy via international organisations, for example the European Union Council of Ministers, through which our Beloved Leaders have laundered database and telecommunications policies.
Now, the only ‘duties’ (or responsibilities) that I’m inclined to agree with are Thomas Paine’s:
When we speak of right we ought always to unite with it the idea of duties: rights become duties by reciprocity. The right which I enjoy becomes my duty to guarantee it to another, and he to me; and those who violate the duty justly incur a forfeiture of the right. … He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.
That is, as I exercise my freedom of speech, I shouldn’t interfere with the freedom of speech of others. If I don’t want to be imprisoned without a fair trial, I should be prepared to grant a fair trial to others. And I must speak up for the freedoms of others else my own will be endangered. Seems quite reasonable doesn’t it?
The latter has resonance in a poem attributed to Pastor Martin Niemöller:
In Germany, they came first for the Communists, And I didn’t speak up because I wasn’t a Communist;
And then they came for the trade unionists, And I didn’t speak up because I wasn’t a trade unionist;
And then they came for the Jews, And I didn’t speak up because I wasn’t a Jew;
And then . . . they came for me . . . And by that time there was no one left to speak up.
Beyond this, do we have a duty to help out those in need? Not in a legal sense, I believe. It would be nice if people helped each other but we should be wary of people (especially authority) imposing on and directing our individual moral choices. Surely those choices are for us to make and live with, not for someone else to mandate.
Now, it seems to me the public (in general) does not tend to appreciate such principles in their initial considerations of any proposal that infringes someone’s liberties. They may not see themselves in the same position. They may think that it will only affect a minority that they dislike or disapprove of and so it is all to the good or it doesn’t matter (indeed that has been an argument advanced a number of times by the current Government). They think that they should have the freedom to say or do what they will but other people shouldn’t. Indeed, why should consenting adults be allowed to do the things in private of which one disapproves? And what need of a fair trial, before a neutral and informed ajudicator, if the police or Home Secretaries claim someone is guilty?
That is what some people seem to think. It seems a bit unreasonable, though, doesn’t it? Imagine if the police broke down your door at 4am and arrested you. Wouldn’t you demand to know why? Well, Article 5 of the Convention grants you the right to know why.
There never was a golden age of liberty. We have never been wholly free. In a fundamental sense our freedoms are circumscribed by the freedoms of others: the freedom to swing my fist ends before the tip of your nose; the volume of my music can be as loud as I like until it interferes with your enjoyment of your home. And all sorts of people – governments, organisations, societies, neighbours, and criminals – have throughout history interfered with our freedoms. That’s why it has seemed necessary to enumerate our freedoms and rights – to write them down in law.
Yes, the most famous enumerations of our civil liberties were formulated by élites in reaction to their circumstances: the first version of the Magna Carta was forced on King John by his barons, rising up against his abuses of power; the Bill of Rights 1689 was born from the Glorious Revolution that followed the English Civil War and the ‘tyranny’ of James II; the USA’s Bill of Rights was written during the infancy of a new country risen from revolution against Great Britain; the European Convention on Human Rights was formulated by the Council of Europe in the aftermath of the Second World War; so too the Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations.
But these enumerate limitations on governments and the freedoms and rights of the individual because their framers had seen what damage the arbitrary exercise of power, the rule of man as opposed to the rule of law, and restrictions to the point of tyranny on our freedoms, could do to individuals and societies. They had personal experience of such abuses and fought against them.
We must be able to challenge interferences and seek redress from those who unjustly interfere, and we can only do this in law if something is written down somewhere – and it is quite handy to have them in one place! Of course we should also have a clause (.e.g the Ninth Amendment) asserting that our liberties are not limited to those in the document.
Who can be trusted with our liberties?
Labour will not improve our natural rights or Convention rights. Rather, precedent strongly suggests they will continue to undermine them. They claim to be a friend to liberty because of they introduced the Human Rights Act. Let’s not mention all the legislation that undermines it! Eleven years of assaults.
They claim to want to introduce ‘declaratory’ or ‘aspirational’ rights and responsibilities (n0 new justiciable rights) and guff about so-called ‘third generation’ rights (socio-economic rights). But I’m not particularly interested in the right to, for example, an adequate standard of living, a third generation right, if I as an individual will not be allowed to enforce it, and in any case politicians should already be fighting for an ‘adequate standard of living’ (to a certain extent).
Precedent suggests that those in power cannot be wholly trusted. Nor can ‘the mob’, the majority of the public. That is why we need people who will stand up for our rights. Do you want to be able to say what you will? Do you want a politician to be able to point a finger at you and have you arrested on a whim?
I suppose there are few who can be trusted with our liberties but we are all responsible for them.