Liberty matters. That statement may seem self-evident, but the freedom under the law that we have historically enjoyed in Britain is more fundamental to the entire nature of our society than many realize.

Freedom is a pervasive virtue, and it has a material impact on many aspects of our national history. Freedom of speech has encouraged freedom of thought, and that is the bedrock of our extraordinary creativity over the centuries – whether it is in literature, or science, or political philosophy for that matter. In conjunction with the freedom of action available to British citizens, buttressed by property rights, it engendered the industrial revolution and made us one of the richest and most powerful nations in the world.

As a rich and powerful nation, our political ideas – foremost amongst them freedom under the law – have been disproportionately disseminated around the world. Those countries that embraced those ideas – from America to Australia to India – are amongst the most successful and civilized nations both today and in the future.

So it is a particular tragedy that we in Britain are slowly abandoning the very characteristics that have made us and others so successful and civilized. It is also ironic that we are doing so often in response to a threat from people that have no respect for those values – who despise tolerance, liberty, and diversity.

The last decade has witnessed an accelerating erosion of liberty on many fronts, all carefully documented in this timely book. The attack on the fundamental liberties, such as habeas corpus, is at the front of the public mind because of the pitched parliamentary battles on ninety days and more recently forty-two days detention without charge.

But these assaults are only the most visible part of the attack. Equally pernicious are the massive intrusions on our privacy with the growth of the huge government databases and the identity card register, the pernicious growth of a surveillance state with cameras seemingly on every corner, the creation of a ‘suspect society’ with the recording of the DNA of a vast number of innocent people, all in conjunction with the undermining of the institutional structures that have historically protected us from excessive state power, most notably jury trials.

Each and every one of these actions has a sensible idea at the core, but one which has been massively overused to the point where it ceases to be a challenge to the guilty and becomes a threat to the innocent.

Why does this happen? What has happened in government to create this soft tyranny in Britain?

Is it that our New Labour masters have decided to covertly put in place the pieces of a dictator state? Hardly, although one or two of their Home Secretaries may have had unhealthy instincts in that direction. Most British politicians are broadly altruistic, and would be horrified to be seen to be the instruments of such action.

No, the problem is more systemic than that, and as a result this is a book that should be read as a cautionary warning by would-be ministers of any political colour, and by those who want to keep an eye on them, be they elector or commentator.

The first of the culprits is the concept of the ‘continuous campaign’. This idea, imported from Bill Clinton’s America, is that political parties should not stop campaigning once they are elected, but should carry on as though they are still in mid election whilst they are in government. Although this sounds mundane, it is at odds with the real behaviour of most British governments down the decades. Most of them just thought about the campaign in the last year before an election, and up until then just ran the country in the interests of the electorate.

The danger of the continuous campaign is that it encourages ministers to use the apparatus of the state to promote the cause of one party or even one minister. The first effect of this is to make everything much more short term. Favourable headlines take the place of favourable outcomes as primary objectives to be achieved. This trend is reinforced by the twenty-four-hour media’s hunger for news.

Add this to a set of policy problems that are relatively intractable, such as Islamist terrorism, or persistent rising crime, and the tendency is to go for more and more tough and dramatic sounding headlines – and therefore for ever more draconian policies. This tendency is reinforced when politicians sell a simplistic analysis of the problem to a worried public. It is reinforced even more when the politicians overdramatize the risks.

So we end up with vast numbers of security cameras that are largely useless for crime prevention or detection, and for which there are precious few privacy protections – but the minister got his ‘10,000 new cameras’ headline. We end up with huge databases that carry vast amounts of acutely personal information on us all, and which put our privacy and even security at risk – but the minister gets his ‘High tech Health Service’ headline.

Of course history catches up. Now the papers are full of stories of lost personal details, and we see everything from bank account details to soldiers’ lives put at risk. We see stories of so-called security cameras used to spy on young women, or on a more mundane level used to maximize council revenues rather than minimize personal risks.

We can be sure that there will be much more to come. The government has begun to make a habit of trying to short circuit legal process, by curbing jury trials, cutting back the powers of magistrates courts, and replacing some court appearances with summary justice in the form of fines and cautions. The effect will make the figures for clear up of crime look good, but it will achieve the interesting double of under-punishing the guilty whilst risking destroying an innocent person’s life with a miscarriage of justice. This, and some of the other effects of the erosion of our freedoms and protection under the law, will take years to surface in the public mind. But surface it will, and when it does the British people will not be impressed.

The other assault on our freedoms comes from a complex nexus of actions whose aim, paradoxically, is to improve our rights. The growth of a rights culture, with an inflation of what fundamental rights really are, in conjunction with well-intentioned but flawed approaches like some of the decisions of the Strasbourg Court and some of the British courts under the Human Rights Act, has led to a peculiar dilution of British freedoms and a signal failure to defend some of those freedoms when they came under serious threat.

The irony here is that the vested interests that defend these flawed institutions are often those that fight a sterling battle in defence of our freedoms in other contexts. The argument is therefore harder to make, but no less important for all that.

Dominic Raab has been at the middle of the battle to defend our freedoms from these many different threats, and also brings an understanding of the international dimension to the table. He is uniquely placed to analyse the problems and propose thoughtful solutions in this book. His first-class forensic analysis is likely to provoke some strong responses, but the cause of freedom is never defended without some discomfort.

Rt Hon. David Davis MP, November 2008

INTRODUCTION

A visitor to Britain arriving on International Human Rights Day might be bemused to read the following newspaper headline: ‘The liberties stripped from the weak today could be lost to us all tomorrow’. He will be positively perplexed if he compares it to another just a few weeks earlier: ‘Human rights is merely a sweetener for rapists, murderers and violent criminals’.

This is not an isolated example of the conflicting views on ‘human rights’ in Britain today.

On the one hand, we now regularly hear that the government is seizing the ancient birthright of Britons, tearing up freedoms nurtured since the thirteenth century and ushering in a dark new chapter in British history. Over the last twelve years, the police have clamped down on freedom of speech, restricted public demonstrations and stifled peaceful protests – using an array of new powers bestowed by a blizzard of legislation, hastily enacted by Parliament on the flimsy pretext of national security. Wave upon wave of antiterrorism measures have been introduced by an increasingly authoritarian government, including proposals to extend police detention without charge that even the former head of MI5 describes as draconian. Wide new surveillance powers allow half a million private conversations between British citizens to be bugged each year by snooping spooks, including hundreds of local authorities.

Meanwhile, our traditional pillars of justice are also crumbling under the immense strain of law enforcement short cuts taken in the name of fighting crime. Basic safeguards put in place to protect the innocent have been wrenched from our justice system by politicians desperate for tabloid headlines: the presumption of innocence reversed, the burden of proof watered down, our courts sidelined and the right to trial by jury subject to sustained, and ongoing, assault.

The creeping powers of the state at every level – from the intelligence agencies through to quangos and councils – are creating a surveillance society, with neighbourhood spies even checking our rubbish and following innocent children home from school to confirm that they qualify for the local catchment area. The Home Office’s imminent national identity register will store masses of sensitive personal details, for each and every British citizen, on a vulnerable central government database. Careless and unaccountable civil servants will then liberally share our private information around the disparate, sprawling and utterly unreliable arms of government – as likely to lose or abuse as protect our personal data.

To cap it all, Britain, the cradle of liberal democracy, now has the unsavoury honour of topping a dubious array of international league tables – including boasting the largest DNA database and the most CCTV cameras in the world.

On the other hand, our visitor may draw little sense of public order or security, as might be expected from a government with such a heavy-handed reputation. On a daily basis, we read about the steady stream of human rights rulings undermining law enforcement, criminal justice and national security. Common sense turned on its head – warped by the European Court of Human Rights in Strasbourg, and magnified by Labour’s feckless Human Rights Act – allows human rights to be wielded to protect and compensate serious criminals rather than their victims. Police now invoke the human rights of fugitive killers, to protect their privacy rather than alert the law-abiding public. The Prison Service compensates drug-addicted prisoners for the hardship of going clean, and gives jailed criminals access to fertility treatment. Airline hijackers successfully claim their ‘rights’ to fend off deportation, illegal immigrants sue the immigration service for holding them in detention and bogus asylum seekers claim access to state benefits. Children show off their novel rights like new toys, challenging authority at every level – including police officers in the street, teachers in the classroom and even their parents at home.

Add in, for good measure, the reams of new government regulation that have spawned a health and safety culture – preventing the police from rescuing a child drowning in a pond, but prosecuting them for mistakes made during the heat of a counter-terrorism operation – and the prevailing sense of confusion is complete.

The conventional explanation is that these are two mutually hostile positions, set amidst a polarized debate that pits a liberal elite against a populist press. But what if, far from antagonistic, there is a kernel of truth, and some measure of substance, to support both sides in this debate?

The British idea of liberty, developed over eight hundred years, is now caught between conflicting tides, cast adrift from its natural moorings. It has been both corroded and conflated. It has been corroded by the government’s direct assault on our fundamental freedoms, including freedom of speech, the presumption of innocence and freedom from arbitrary police detention. British liberty was hard won over centuries – millions died in the struggle, revolts and wars that secured and then defended those freedoms. Yet, since 1997, in a vain effort to prove itself tough on crime and counter-terrorism, historically weak flanks for the Labour Party, the government has hyperactively produced more Home Office legislation than all the other governments in our history combined, accumulating a vast arsenal of new legal powers and creating more than three thousand additional criminal offences. As the power of the state has grown, so has the scope for its abuse, whether by police officers operating under ever-increasing pressure, invisible civil servants concealed within grey bureaucracies or over-zealous council officials relishing their windfall of extended authority over local residents. These incremental extensions in the reach and authority of government, and the mounting abuse of power by its agents and officials, have led to a tectonic shift in the relationship between the state and the citizen. As our liberal democracy becomes less liberal, the government is inflicting lasting damage on the very bedrock of what it means to be British – undermining the fundamental freedoms we enjoy as citizens, our sense of fair play as a society and the checks and balances that restrain the state’s ability to interfere in our daily lives.

At the same time, and in parallel, the British tradition of liberty has been conflated as swathes of other comparatively minor grievances, claims and interests have been shoe-horned into the ever-elastic language of inalienable, unimpeachable and judicially enforceable rights. In place of our most basic – fundamental – freedoms, steadily eroded and undermined since 1997, we have witnessed the expansion of a range of novel, often trivial, rights.

Over the last thirty years successive governments have tried to grapple with, or plain ignored, the inflation of human rights by the European Court of Human Rights in Strasbourg. But since 1997 the government has fuelled the proliferation of rights by passing its flagship Human Rights Act, importing lock stock and barrel into British law the European Convention of Human Rights and all of its accompanying case law. The Act forms part of a broader government strategy that seeks to anchor Britain to Europe and introduce a socialist conception of human rights, fundamentally at odds with the British legacy of liberty going back hundreds of years.

The result has been to upgrade endless ordinary claims – including to social services, NHS treatment, welfare payments and even police protection – to the status of fundamental human rights.

Civil servants, the courts, police, prison officers and numerous other officials have struggled to keep up, distracted by the growing number of rights they are forced to service along with the wider public interest, and baffled by the legal confusion it has created. There is a real and rising risk that this exponential expansion of new, individual rights will drown out a balanced assessment of public service priorities, displace broader social interests, fuel a growing compensation culture and undermine this country’s traditional ethos of civic duty and social responsibility.

The dramatic expansion of rights in the UK is not the result of public debate, nor has it been endorsed by our democratically elected representatives. On the contrary, it has emerged by stealth, pioneered by judges in Strasbourg – and more recently the UK – at the expense of any meaningful British democratic control. Whatever the differing views on human rights – and those on the left and the right may reasonably disagree – the massive proliferation of rights through the courts is difficult to square with basic ideas about how a democracy should function.

If these twin developments have frayed the threads of our liberal democracy, they are not yet beyond repair. As a general election beckons, with all three political parties proposing constitutional reform – including proposals for a modern British Bill of Rights – this book aims to inform that debate, by drawing on our history, constitution and a consideration of the practical impact of human rights on our daily lives. To do that it is necessary to ask – in the mother of parliamentary democracies, which enshrined the first fundamental freedoms some eight hundred years ago – what went wrong with rights?

PART I WHERE DID RIGHTS COME FROM?

1 Runnymede

‘You mustn’t sell, delay, deny, A freeman’s right or liberty. It wakes the stubborn Englishry, We saw ’em roused at Runnymede!’

RUDYARD KIPLING,

‘What Say the Reeds at Runnymede?’

Where did our ‘rights’ come from? Winston Churchill described the Magna Carta of 1215 as ‘the foundation of principles and systems of government of which neither King John nor his nobles dreamed’. At Runnymede, near the royal home of Windsor, the seeds of British liberty were sown. Centuries before the Enlightenment gave birth to the French Revolution and American Declaration of Independence, and with a fraction of the bloodshed, English nobles persuaded their monarch to cede rights and freedoms that charted a course towards liberal democracy.

Magna Carta was preceded by war between England and France, as King John strove to recover lands lost to the French king, Philip Augustus (Philip II). In pursuing his revenge, John placed an increasingly intolerable strain on what was left of the barons’ good-will and financial resources, already tested by his abuse of feudal prerogatives. John depended on financial and political support from the barons to implement his foreign policy and military strategy. In a deft reversal of his isolation – and excommunication – by the Pope, Innocent III, John turned the tables on both the French and the barons by accepting papal authority over England. Magna Carta was the embodiment of a disingenuous truce, which bought off the barons, kept the French at bay and capitulated to the spiritual authority of Rome. As such, it proved a temporary rather than lasting settlement, and one John had no intention of keeping. His refusal to adhere to its terms led swiftly to domestic rebellion, French attack and his own death.

In reality, Magna Carta’s sixty-three clauses were more concerned with the immediate interests of the barons – feudal rights, tax and trade – than the rights of man. There was no mention of any broader representation beyond the ruling class, no enunciation of democratic principles and no lofty declaration of fundamental rights. Notwithstanding this triumph of pragmatism over principle, 1215 nevertheless marks the historical starting point for the modern debate on ‘rights’. It may not have been consumed by, or the product of, some deeper political emancipation, yet three of its nascent principles – the rule of law, habeas corpus and trial by one’s peers – still represent the earliest articulation of liberty capable of resonating with a modern audience.

Numerous articles throughout Magna Carta sought to subject John to some basic ground rules in the exercise of royal power. The text is littered with articles that restrict the arbitrary use of royal authority and restrain the levying of feudal dues. Article 17 requires courts to be held in fixed location and article 40 expounds that: ‘To none will we sell, to none deny or delay, right or justice.’ This codified the most basic idea of the rule of law – requiring the authority of state to be exercised in a clear, transparent and consistent way, not at the arbitrary whim of those with power. The pervasive value of ‘legal certainty’ is easily overlooked today, as we take it for granted that the law of the land will be applied impartially and consistently through independent courts. But it provides the foundation for all the other freedoms. Predictable rules are essential not just for individuals, but also companies and even government to plan their business and lives around. So, when the government introduced indefinite detention without trial for foreign terrorist suspects after 9/11, the legislation was heavily criticized by the House of Lords, Lord Nicholls stating that ‘indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law’.

Likewise, Article 39 of Magna Carta set out one of the earliest constitutional expressions of habeas corpus and trial by jury. The right of habeas corpus – translated literally as ‘you may have the body’ – is the individual’s right to know and challenge the legal basis of his detention by the state. Today, the principle reflects a basic level of due process we expect from the police, in return for their power to interfere with our freedom. If stopped by a police officer, we expect to be told the grounds for our being stopped, let alone any search, arrest or detention. In the overwhelming majority of criminal investigations, the police cannot hold a suspect in detention for more than four days without bringing criminal charges – at that point they must justify the deprivation of the liberty of the citizen. We assume these rights as part and parcel of living in Britain. In other countries – China, Egypt or Syria, for example – dissidents and government critics live in constant fear of being arrested and arbitrarily detained, with minimal checks on the use and abuse of police powers.

Article 39 also bans serious punishment ‘save by the lawful judgment of his peers or by the law of the land’, while Article 38 prevents royal officials prosecuting an individual ‘without producing faithful witnesses in evidence’. These guarantees formed an early basis for the common law model of a fair trial – including the presumption of innocence and the right to elect trial by jury when faced with a serious punishment. If the state wishes to imprison or otherwise punish an individual – depriving him of his liberty – it must prove the criminal case against him beyond reasonable doubt. It is for the state to demonstrate guilt, not for the individual to prove his innocence. Whether the accusation is illegal parking or a bank robbery, a court will throw out on the first day of trial a case brought without the evidence to back it up.

Likewise, the right to trial by jury remains relevant today. In criminal cases, the right to elect a jury – twelve members of the public rather than a single judge – provides a check against both over-zealous prosecutors and the kind of bad law that even a functioning democracy may pass from time to time. People prosecuted for offences that they believe to be harsh, unjust or just trivial – such as dropping an apple core on the street, or selling groceries in ounces and pounds rather than kilograms – still rely on trial by jury today to challenge unfair law enforcement, putting their faith in the common sense of twelve members of the public. These are fundamental safeguards built into our common law system – and manifestly absent from continental European principles of law and justice.

The second relevance of Magna Carta to the modern debate on rights lies in its constitutional character. Replete with quid pro quos, it is premised on the coupling of rights with responsibilities, balancing the interests of the king and his subjects. Magna Carta was framed as a social bargain, explicitly designed as a contract between the king and the barons – ruler and ruled – requiring reciprocal respect. The conception of liberty, or more accurately certain specifically defined liberties, was spelt out through a series of rights that sought predominantly to check the overwhelming or arbitrary exercise of power by the monarch. The barons intended to restrain the meddling of the king in their affairs, and Magna Carta’s overarching aim was to protect their freedom from the Crown, rather than obliging the monarch to do anything in particular for them.

Magna Carta represented a compromise of competing interests, rather than any coherent blueprint for liberal democracy. According to Churchill, the barons ‘groped in the dim light towards a fundamental principle’, which they found in the ‘only half understood’ idea that ‘Government must henceforward mean something more than the arbitrary rule of any man, and custom and the law must stand even above the King.’ Those early freedoms from royal interference subsequently developed into a range of fundamental liberties demarcating the state’s ability to interfere in the lives of its citizens – including freedom from arbitrary arrest and prolonged detention without charge – and outlined the broader contours that would define the relationship between the citizen and the state. Rooted in our history, this basic idea of placing checks on the power of the state, thereby preserving the freedoms of the citizen from interference, are at the heart of the current debates on the limits of state surveillance, the reach of database state, the right of the police to take and retain DNA on innocent people and safeguards on the use of the ever-present coverage provided by CCTV cameras.

The initial constitutional cast set by Magna Carta developed piecemeal, over the following eight centuries, into a model of liberal democracy. Unlike many other countries, Britain’s constitution is not codified in a single overriding document, but made up of a patchwork of laws and conventions that have developed steadily over time. The Petition of Right in 1628 added constitutional bars on taxation without the consent of Parliament and the use of martial law in peacetime. Inspired by Sir Edward Coke – who held the posts of Attorney General and Chief Justice before standing for Parliament – the Petition of Right also provided the earliest protection of individual privacy. Coke’s famous maxim that ‘a man’s house is his castle’ informed the drafting of Article VI, which protected private homes from being forced by the Crown to house soldiers, a longstanding grievance. This established one of the first legal protections against intrusions into the home, on which later common law privacy protections were incrementally built.

Today, we expect that the sanctity of the home will only be breached in the most exceptional of situations warranted by the strict necessity of law enforcement or public safety – not on the whim of some civil servant, quango or local official. Similarly, we expect the state to respect the privacy of our correspondence, internet access and email exchanges, unless there are strong security grounds for interception or monitoring. We recognize the need for the state to gather some information on us, but only on a limited – need-to-know – basis, in order to help fight serious crime and terrorism. Few are comfortable with the idea of giving the state carte blanche to collect, retain and share our detailed, personal and sensitive information. The state is meant to be accountable to the citizen, not the reverse.

Like Magna Carta, the Bill of Rights, passed in 1689 in the aftermath of Civil War and the Glorious Revolution, was another straightforward, unpretentious text addressing in clear and concise terms a catalogue of widespread grievances. A dozen constitutional gripes were followed by thirteen general remedies, as well as redress for particular issues of contemporary concern. The Bill of Rights built on earlier rights. Fair trial safeguards were added, strengthening the independence of jury selection from bias, and requiring the prior conviction of a criminal offence before the imposition of fines or the forfeiture of property. Article 20 of Magna Carta had stipulated that ‘For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood’. The underlying idea was that criminals should get their just deserts, pay the price for their offence, but that the punishment should fit the crime. There must be a limit on the right of the ruler to punish those subject to his rule. The Bill of Rights added to this the requirement that ‘excessive bail ought not to be required, nor excessive fines imposed…’. These early constitutional innovations marked out the British idea of justice as firm but fair. Today, debates about crime and punishment still focus on these basic ideas, whether it is the debate about honesty in sentencing or consideration of the proportionality of criminal punishments.

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The Assault on Liberty: What Went Wrong with Rights

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The Assault on Liberty Dominic Raab

Table of Contents

FOREWORD

INTRODUCTION

PART I WHERE DID RIGHTS COME FROM?

1 Runnymede

The Assault on Liberty
Dominic Raab