Rights Supremacy

How and why the Conservatives became a Party of Civil Liberties

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‘I love liberty by taste, equality by instinct and reason.’ Alexis de Tocqueville to John Stuart Mill in 1836.

The Assault on Liberty by Dominic Raab (2009)

Since the Thatcher era, there have been two complete reversals in the politics of civil liberties. Under Tony Blair, Labour became a Party intolerant of anti-social behaviour, dedicated to making public services accountable through targets and perhaps overly cognisant of the claims of public safety with the advent of the War on Terror. Then, and ironically, given their perceived authoritarianism in the 1980s, the Conservatives became before the last General Election one of the parties most interested in civil liberties.

The change is striking, not least because the last time the Conservatives were in power, they faced many of the same challenges; terrorism (of the Irish variety), civil protest (Trade Union strife and Poll Tax riots, both admittedly more serious than protests against the Iraq War), and a strong line on law and order. Michael Howard was a key personality as Minister for Local Government, Secretary of State for Employment and finally Home Secretary under both Thatcher and Major. Yet it was under his leadership that the Conservatives finally found an adequate voice to condemn the government’s attitude to human rights, as the Human Rights Act 1998 came under consistent attack from the Daily Mail for its supposed lure to the criminal classes, successive Home Secretaries failed to cope with the problems of immigration and the left-wing press grew uneasy with Blair’s ‘better to fall doing the right thing’ attitude to pre-trial detention (November 2005) and ID Cards scheme earlier in the year.

Part of the reason for the Conservatives’ about-turn is that they have had the chance to consider the issues more deeply in opposition. Dominic Raab’s fairly complete survey of a decade’s worth of policy neatly summarises some of the thinking of the new Tory school. In particular, Mr Raab is an associate of David Davis who resigned as Shadow Home Secretary and fought a flat by-election on a civil libertarian agenda in 2008. Mr Raab’s strongest recommendation is that he is a lawyer by trade and he compiles a body of evidence and opinion, shrewdly (albeit perhaps somewhat myopically) portrayed to support his claims that Labour’s anti-terror legislation in particular has been of little benefit and great cost. Among this evidence is the fact that no evidence used in a criminal trial after the 7 July Bombings was acquired more than 21 days after arrests had been made and that new offences of withholding information and encryption details render the extended detention ineffective.

A good deal of the Conservative libertarian position is principled. Mr Raab argues that John Stuart Mill was right to argue for a pluralistic society, so that freedom of speech should not be restricted on the basis of spurious protests. He is also keen on economic freedoms, something Davis refers to in his short introduction to the book. More importantly, however, Mr Raab advances the argument that much of the new ‘surveillance state’ that Labour introduced through various databases has been relied upon too heavily by the police and has been exercised by local Councils without oversight.

Another part of the Conservatives’ shift is political. Although David Cameron’s calls in 2007 to scrap the Human Rights Act would not have formed part of any plan to attract Liberal Democrat supporters, there has been something of a convergence. The Conservatives were also trying to attract ethnic support for the first time. At the risk of my sounding cynical, Mr Raab argues sensibly that if we expect Muslim communities to be the first line of defence in the War on Terror, we ought at least to avoid tainting or alienating them by introducing laws which effect their liberties disproportionately.

The third reason for the new Conservative position on civil liberties is that they dislike the type of society Labour’s interpretation of Human Rights is producing. They agree with the Daily Mail view that the interpretation of European law through British Courts has made judges, Councils and other institutions risk-averse, unpredictable and unscrupulous, particularly without oversight. The apparent inability of the last government to deport criminals plays a major part in this critique, but so too do new claims on the welfare state in the form of targets and the broad interpretation of rights such as life.

Gordon Brown, the bête-noir of most Conservatives, intended to play his own cards on liberty, making speeches and writing pamphlets calling for a Bill of Rights and a ‘positive’ interpretation of liberty, influenced by Amartya Sen, and based on enhancing the development potential of the individual. However, none of this came to anything of significance and unkind voices whispered that Brown enjoyed his macho image upon assumption of the Premiership, when calling a COBRA meeting became a response to any eventuality.

Wooly Liberals or Wolves in Sheep’s Clothing?

David Davis and Dominic Raab do not necessarily feature in Cameron’s inner-circle. Mr Davis is persona non grata after his by-election campaign and the two clearly do not get along, while Mr Raab is finding his feet as one of the new influx of MPs. Nonetheless, his call for a Bill of Rights to replace the Human Rights Act (rather than to stand alongside it like Brown’s) bears similarity to Cameron’s announcements of 2007 and 2007. Civil Liberties featured strongly in the Coalition Agreement, including an investigation into a Bill of Rights and ‘a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion.’

Much of what Mr Raab has put up for debate in his well-written book is worthy of consideration. If, at times, it reads like a manifesto, that is because it is – the codification of Mr Davis’ campaign. The Coalition will not be able to act boldly on all of it, however, because the Liberal Democrats like many of the positive freedoms that Labour has introduced. Nick Clegg has already ruffled feathers by allegedly planning to allow those in prisons on election days the opportunity to vote (part-timers can vote if the ballot falls on one of their ‘off’ days).

The problem for David Cameron (or, more acutely, for Mr Clegg) is that the focus on rights appears to be part of a larger campaign against universality, and what is perceived as in left-leaning circles as fairness. Mr Raab does not go out of his way to avoid showing contempt for the use of the State as a tool for social mobility, even though he does not condemn it outright. Similarly, the National Institute for Clinical Excellence (NICE) comes in for some abrupt words for suggesting that the well off can load the system in their favour. However, having argued that a broad interpretation of human rights reduces the ability of Ministers to decide on the size of the State, it seems to me that Mr Raab can only be arguing for a more laissez faire society and the allocation of treatments would be one of such a society’s greatest injustices.

In summary, it seems right that a Minister’s first instinct should be to question the need for new laws, and not to search desperately for initiatives. Some of the case studies are manifestly absurd, even though it is the purpose of the judiciary to avoid these pitfalls. The case for repeal of the Human Rights Act is not convincing, however. Perhaps a better alternative would be to improve the oversight of our contested civil liberties – not by some Big Brother figure, but by checks and balances. If the government were to make Council uses of databases, CCTV and ASBOs permissible only at the approval of Councillors, who would take the hit if embarrassment results, there might be fewer cases of children followed home to check that they really did live in a school’s catchment area.

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