Below is a selection of talks from the Protecting Rights session.
A.C.Grayling: Our session is about protecting rights and immediately of course that entails protecting the rights of individuals against sources of power, mainly of course state power. But one has to bear in mind the fact that there are other sources of power in society too – economic power, the influence of certain lobbies like the media and the rest. But the primary focus here is state power: the power of government over individuals. Peter Facey began by quoting James Madison who was not only a President of the United States but he was one of the authors of the Federalist Papers and it was he from whom we get the quotation the first time it is mentioned really about how liberties at home are always reduced in the interests or supposed interests in protection against threats from abroad which is in part very pertinent to our concerns today.
I am speaking as at first a reluctant and as time has gone by now a more passionate convert to the idea that we need a new constitutional settlement in this country. The term ‘constitutional settlement’ is a little bit broader as a concept than a new constitution. It may be that we need a new and indeed written constitution, but there may be steps prior to going to that extent which might help to remedy some of the difficulties that we are currently experiencing. We are all very familiar with the erosions of liberties that have taken place in this country over the last several decades. The present crisis, I think, really began in 1994 when Michael Howard was Home Secretary – for various reasons. One is because that was the year in which we started to become one of the most watched countries in the world with hidden tv cameras everywhere. Things have progressed since then. Before 9/11 there were already measures introduced by the current Labour Government which constituted depredations on our civil liberties. But of course that has been accelerated by our security situation from 9/11 onwards. I assume that most of us agree that we are in a perilous situation. This is the time that we have got to do something about it.
The first step that I think could be taken to preserve our liberties in this country is for individual members of Parliament to go back to being what they once and for a very long time were and that is more or less independent members of parliament and able to vote and to take action independently of the whipped line by their party. When Voltaire said of this country that the reason why it was the home of liberty was not because of its constitution but because of the constitution of the people he had in mind the ruddy faced farmer who happened to represent some constituency of two voters in the House of Commons, would be very independent-minded and would sometimes take a line that was quite different from the other members of more or less the same political persuasion. That doesn’t happen any longer. Back in 2006 when the Identity Card Bill was being discussed in the House of Commons, I wrote a pamphlet on behalf of the organisation, Liberty, which was sent to all MPs and members of the House of Lords and I got dozens and dozens – I mean literally scores – of replies from Labour MPs all saying that they agreed with the argument against having an ID card scheme and a National Identity Register, but saying that they were going be whipped into voting for it and that they couldn’t do otherwise – the question arises, why not if they didn’t agree with it? – and they also said, which I found even more dismaying, that the argument against an ID card scheme would not be won on principle – the principle of individual autonomy and being a private citizen or private member of this society - but on grounds of cost. If it was too costly, too expensive, too awkward, then that might be a reason why it might not happen. So the first step would be to get our MPs to be more independent-minded and to stand up against things that they thought might be damaging to our civil liberties and to our polity, because our polity – traditionally at any rate – turns very much on the idea that we are all as responsible adult members of this society to some extent players in the decisions over what happens in our lives.
But that is not likely to happen soon. The next step would be to do something about our system of representation. As the centre piece of any kind of new constitutional settlement in this country we have to have a new and better system of representation. Apart from anything else is just the matter of principle which is that a very unjust electoral system which militates against smaller parties and smaller interests in society, and which delivers power – sometimes very considerable power, for example when you have a very large majority in the House of Commons which you may well have on a minority of actual votes cast, and certainly on people enfranchised to vote – you can do what you like. A long time ago, Quentin Hogg, Lord Hailsham as was, wrote that this was an elective tyranny, an elective oligarchy in effect and it’s true. All our rights, all our entitlements, or practically all of them at any rate, are held at the discretion of Parliament and if Parliament wanted to change them, they could do it. That is a very unsatisfactory situation. One way to defend against it therefore would be to have a system of representation which made it more difficult for any one party to have a big enough majority in the House of Commons to do that. The standard argument against that is that the result is weak government! Well, great! I’m all for that. I think the weaker the Government, the better for the rest of us. So it would be a bulwark in fact against things happening that we all find very disagreeable.
But if you are going to alter the system of representation in this country that dramatically and it would involve certain knock-ons because you can’t just take one tile out of the line of dominos – and change that, even though it would have a very positive effect if it were possible to do that in our society. It must tie in to a lot of other needed constitutional changes too. And the reason why I have become a convert to the idea of a written constitution is looking at the parallel experience in the United States of America over the last few years that people interested in civil liberties are having there. One of the major concerns in the US has been the warrant for wire-tapping under the auspices of the George W.Bush administration. If you trace and you can do this on the History of Commons online in fact, everything that has been done by the two Bush administrations and by civil liberties groups and other affected by eavesdropping on their communications and see the actions that they have taken through the courts – this is because they have a constitutional protection of their liberties and they can appeal to amendments to the constitution to take action against or to call into question what the administration is doing. And even though, when the administration has tried to introduce some measure and been knocked back by the courts, it has introduced a law afterwards that makes it legal to do that same measure – there has been this kind of waltz or three-step procedure going on there, such that defenders of civil liberties in the US recognise that in some ways they have themselves been the agents of more draconian laws as a result of challenging the Executive - nevertheless there is that resource. And in a fresh new-minted constitutional settlement in any advanced country like our own, something could be built in to protect us from that tendency of an administration changing the law retrospectively in its own interests when it has been challenged on some constitutional matter.
What we need I think, now that we have had this experience over the last couple of decades and seen what effect it has had on the fabric of our freedoms as citizens, is a clearly carefully thought out, much debated and finally, we hope, nationally adopted set of provisions that would really genuinely entrench our liberties. That phrase is just short-hand for saying, ‘put genuine breaks on what the executive can do, the legislative can do, and what the arms of the state can do in dealing with private citizens in their relationships with those private citizens. The argument if a very familiar one and has been put any number of times – that we live in dangerous times. I think the threat is at times very serious and has to be taken very seriously. Therefore also the argument put by people like Acton in the nineteenth century, John Stuart Mill, and all the way back to Locke about the relationship of the individual to the state, involves therefore the individual member of society recognising that because it is so important to be a possessor of liberties without which we cannot be constructors of the good lives for ourselves that we have chosen for ourselves, we have to be prepared to take the risks that come along with it. The first duty of Government, said Acton is to protect the liberties of the subjects, the citizens. The first duty is not to protect our security: it is not to keep us safe. It is a high duty of the state, certainly. The logical conclusion of trying to protect our securities is to lock us all up in our homes. Now that’s not practical and it just wouldn’t work. Therefore we all have to recognise that we carry some risk, some responsibility for enjoying our freedoms. A mature government in a mature society ought to be saying to citizens, “This is the fact of the matter: we cannot make you 100% secure. You are going to have to take these risks. You therefore have to keep your eyes open and be party to protecting yourself and everybody else. But you do that because it is worth being free.” And if, little by little, we are being turned into servants of the state, because the state thinks we can’t look after ourselves and they must look after us – then we have to remind the state that actually things are the other way around. They are our servants. We want our liberties, and if the only way of getting them is to have a written constitution – then I’m all for it.
Douglas Carswell MP: Four years ago when I was first elected to the House of Commons I was conservative both in name and outlook hen it came to constitutional matters. I have changed my mind though and I have now come to the conclusion that we need far-reaching and very radical reform. We have an over-bearing technocratic state that is encroaching on our freedoms and liberties and I think we need to do something about it. The question I face, and I think this is where the division between myself and Francesca Klug will be, is that I believe that our liberties are best guarded by empowering the legislature and the people against the Executive. I am very wary of those who suggest we should allow the judiciary and unelected judges and lawyers from safeguarding our liberties and I want to explain that a bit more later.
We need to radically change the relationship between Parliament and the Executive, between us and the Executive by empowering the people directly against the Executive in ways that weren’t possible until the age of YouTube. We need far-reaching electoral reform to achieve the independent-minded legislature that Professor Grayling spoke about – and I’ll say hoe I think we can do that. We need direct democracy. Traditionally, conventionally,we are taught that there is a balance between liberty and democracy: too much of one and you lose a bit of the other. I actually think the biggest threat to our liberty comes from a lack of democracy. What is the cause of our lack of liberty? It is a lack of democracy, not too much democracy. Executive power is overbearing and encroaching upon the nooks and crannies of our lives. Because Executive power is now exercised by institutions that are not answerable to anyone can vote for. In the old days, when I was studying politics at A-level, I was taught Executive power was wielded by those accountable to ministers. The one thing I have learnt in Westminster is that ministers are the spokespeople, the puppets for those who wield real Executive power. Forgive me, whichever clown in SW1 happens to be the Home Secretary, they are following the agenda of the technocrats in the Home Office. The quango state explains why Executive power is so overbearing, whoever is in office.
Let me give you a few examples: Customs and Revenue a few years ago seized people’s private property, why? Because they had decided they wanted to. They had no legal basis for doing so. The BBC License Fee collectors make legal threats against people but have absolutely no basis for that in any law passed by Parliament. ID Cards: perennially whichever government is any office and then runs out of steam, a civil servant, the Sir Humphrey Applebee suggests ID Cards as some sort of solution to some problem. It is a solution in search of a rationale. In education, the nappy curriculum imposed upon perfectly good schools that just teach children slightly quirkily – like the Steiner Academies, We see central government intruding on nooks and crannies. Primary care trusts in my constituency who pay for people to go and frighten young toddlers on what will happen to Mum and Dad if they don’t do what the Primary Care Trust thinks they should when it comes to smoking. The Financial Service Authority which when I worked in fund management used to impose lots of utterly ridiculous and stupid regulations on us but failed to do the pretty obvious stuff – i.e. make sure that banks weren’t going to go bankrupt. We see the technocratic quango state failing to do what it should do but deciding for itself to tell us what it suits them to do. It is the quango state that explains the loss of liberty and the extension of Executive power. As an aside I just want to point to point out that it is good that those on the centre left talk in terms of small government and safeguarding our liberties. But I think we cannot be selective about which liberties we safeguard. If you believe, as I do, in a free society you cannot if you are on the centre left also suggest that we can have safeguarded liberty but we will still none the less impose our agenda on your classrooms. Small government means getting the Executive off people’s backs whether or not we think we have the right solution for other people’s children when it comes to the National Curriculum.
It is the unaccountable exercise of Executive power by the quango state that explains our loss of liberty. And I think there are basically two solutions to the problem. Do we put it above party politics? Do we give some judges the power to basically do the job of guarding liberty for us? Whenever I listen to Question Time, you get a cheer from the audience whenever anyone says such and such an issue is too important for party politics. The National Health Service – let’s leave it for the technocrats at NICE to decide who gets the medecine. Banking is pretty important: let’s leave it to those technocrats at the FSA to decide. Exams and tests: let’s leave it to the QCA! The trouble is, if you leave something to the technocrats and bureaucrats, as Max Weber understood, they do what suits them, and often they are monumentally useless. It’s the QCA who messed up SATS. It is the FSA who fails to regulate effectively. If we give our liberties to unelected judges and leave it to them to do the job of safeguarding our liberties, they will not safeguard our liberties. I grew up in a country which had a wonderful constitution, but unfortunately President Amin paid little attention to it. Executive power cannot be constrained by leaving it to unelected judges to do the work for you. That’s what they do in Teheran: it doesn’t work. It is also the solution that Rousseau came up with: we should leave it to the experts to decide what is in the public interest. I don’t think that is the answer. Judges are not disinterested experts: they are people; they have subjective opinions. Twenty, thirty years ago their ideas may have been more Colonel Blimp than they are now: they are still subjective and biased opinions. Serving on the Joint Committee on Human Rights, I came to the view that we needed to withdraw from the European Convention on Human Rights and scrap the Human Rights Act. It is the wrong solution to this problem. It might make us feel good, but it will do nothing t get the Executive off our backs.
Instead, I think we radical change in our democracy. The judiciary has only stepped in to try to constrain the Executive because the democratic process and the legislature are not doing the job properly, because basically elected politicians are useless. You can’t take the balance between individual rights and security out of the equation: it is a profoundly political issue and it is right that you can vote for the people who will safeguard your liberties. We need radical reform to make sure that the supine and spineless institution that is the House of Commons is effective at doing its job. At the moment it is monumentally useless at holding the Executive in check. Here are some ideas of how to do this.
*I have come around to the idea of electoral reform: we need multi-member constituencies, because the fact is 60-70% of MPs in the House of Commons stand zero realistic chance of ever losing their seats. So guess what: the whips have a lot of power; the voters don’t. If we had a system of multi-member constituencies, I think we would start to see MPs behave in a way that represented what their constituents felt and they would be more willing to play a critical role vis-a-vis the Executive than they are at the moment. At the moment the fact is most MPs in the House of Commons are there to support the agenda of the Executive. Until we have electoral reform, big intrusive Executive power is going to become even more intrusive.
*We also need open primary selection so that we decide democratically who actually stands for public office in this country. The idea of one-party fiefdoms where a few people happen to be in with the trade unions, or on my side of the house in with their local WI – that is not the way to decide who sits in the democratically elected legislature.
*We need secret ballots to choose a Speaker. He’s a nice person personally but I on record saying the incumbent is not up to the job. Until we can choose who is in the Chair, the legislature is not going to be able to do its job.
*We also need the House of Commons to choose who chairs the Select Committees and then we need to give the Select Committees the power to ratify Executive appointments of ministers and quangocrats and each Select Committee to ratify the budgets of their departments – that will constrain the quango state.
*We also need direct democracy. Instead of contracting the process of holding the Executive to account out to elected politicians and the SW1 tribe, we need the power to do that ourselves. That means I think negative vetoes, to reject the absurdities and the follies of the political classes when they try to impose ID cards, or the Maastricht Treaty or the Dangerous Dogs Act on us.
*I wouldn’t rule out the idea of a formalised Bill of Rights. I wouldn’t rule out the idea of formally redefining the relationship between the tiers of government. I personally would like to see quite a federal system: a devolution of power – not a European federal system, a domestic federal solution.
But the trick to this is not giving it to the judges and the human rights lobby to solve the problem for us. They will make it worse. What we need is radical reform to ensure that those we actually elect on elections day hold the Executive to account rather than simply seek to become part of it. Thank you.
Francesca Klug: The subtitle of this session is: how do we stop rights and freedoms a political football. I will dissect these terms in full and I want to address this in two parts. First of all, how do we stop rights and freedoms from ‘being political’? The question is misguided (academics always start like that). Rights and freedoms come from political struggle – let’s be clear about that. As Helena Kennedy said this morning, the rights and values may themselves be enduring, but you will never end the debate about the appropriate balance between liberty and security, privacy and free speech or for that matter what should happen when two chat show hosts put abusive messages on the ansaphone of a famous Fawlty Towers star. Nor should that kind of debate ever end. He may not realise this but I actually have huge sympathy with Douglas that human rights and the debate about rights and freedoms should not close down politics. That is why I was part of the group that fought very hard for the Human Rights Act not to give judges the final say, but to leave the final say with Parliament. There are people who want a Bill of Rights precisely because they oppose that approach. I’m with Douglas: I think politics always has a role when it comes to protecting rights and freedoms.
So the issue is not taking rights out of politics, but enabling everyone to participate equally in politics and society as a whole by ensuring that everyone is enabled to fulfil their potential through the guarantee of certain fundamental rights, some of which by the way inevitably tread on other people’s freedoms. This is the point of Bills of Rights of course, to signal the enduring values of a society and through this provide some protection for individuals and minorities who need it most and get it least from other legislation. That is the question that you didn’t answer Douglas.
How do you protect those whose views and aspirations are not necessarily represented by a system based on majority rule? All Bills of Right worth their salt will never pass the Daily Mail test. They will always protect the unpopular and the vulnerable: I include of course Prince Charles and John Gaunt in that, both of whom have benefited from the Human Rights Act.
What Bills of Rights cannot do of course is create Nirvana or Shangri Lar. Think of the American Patriot Act, the Homeland Security Act, the Real ID Act of 2005, or the Detainee Treatment Act and the removal in America of Habeas Corpus from detainees that the previous President had designated ‘unlawful enemy combatants’. The American Bill of Rights stopped none of these, and nor can any Bill of Rights if politics or people do not uphold governments and courts to protect the rights enshrined there, in good times and bad. As the famous US judge Leonard Hands memorably said, “ Liberty lies in the hearts of men and women. When it dies there, no constitution, no court [ and I would ad no Bill of Rights] can save it.”
But politics is only one side of the equation I have been asked to address today. We are also asked to consider football. Football is a game I know ignites passions. Without doubt, a game in which scoring points is the whole point and backing your side against the other team is the whole pleasure. Point-scoring in the current debate about a Bill of Rights and the Human Rights Act is evident, although sometimes I have to say, the race seems to be to the bottom rather than to the top of the Division. The irony is that while giving an appearance of being on different teams, or different sides, the two main political parties, present company excepted of course, are often actually on the same side. Both have at times resented – let’s be honest – whether in power or in Opposition the incursions on state power brought about by the Human Rights Act. Both have at times called fro a British Bill of Rights and Responsibilities in order to underline the responsibilities of the individual – as if we didn’t have enough – rather than limit the power of the state. I don’t want to become party political about this but I have to say it as it is. In David Cameron’s case – read page 11 of the Guardian today if you don’t believe me – he has gone further and called for the repeal of the Human Rights Act and a Bill of Rights to increase the power of the Executive – to, to quote him directly, “fight terrorism and crime” and to reduce the power and discretion of the judges. Now these latter points are perfectly legitimate reasons to oppose the Human Rights Act. He is entitled to that view. But they are also the obvious sensible reasons to oppose any other Bill of Rights that would come in its place. Why on earth and how on earth are we going to get a Bill of Rights to protect us more than now if this Bill of Rights is going to be based on taking away the only protections we have against the untrammelled power of the Executive? And why do we want to do that? Because at the moment governments can’t deport people that they want to and they can’t wage the fight against crime and terrorism. Those are the reasons that the leader of the Opposition, and our likely new Prime Minister, has given us for having a Bill of Rights.
Rights and freedoms, of course, are not a game of course of football or any other kind: least of all one whose rules should change to suit particular prime ministers of any type or even to respond to testing times. People have got to make up their minds what they want. If we want enduring values which are constitutionalised we will have to accept that though we might be the lucky ones if we go on to have a further Bill of Rights, to have a say in what these fundamental rights and freedoms should be, we will also deprive future generations of this pleasure and will inevitably allow “ unelected judges” as Douglas says, to interpret their application and flesh out the meaning of such broad rights and values in particular circumstances as the years go by. The post-war human rights framework which emerged through the ashes of the war and the holocaust, building on the Magna Carta, the 1689 Bill of Rights and the American Bill of Rights has been adopted by every single country in the world, specifically to the values in the Universal Declaration of Human Rights and the Geneva Torture and Genocide Conventions. When other countries argue that these do not apply to them because of their particular circumstances, be it America after 9/11, Zimbabwe after sham elections, or Israel following rocket attacks, we all this exceptionalism, a breach of common values and disregard for basic decency. When democracies try and find loopholes to ignore these common standards – and I believe the latest word from the Conservative Party is that if we had a Bill of Rights, we would no longer be bound by the decisions of the European Court of Human Rights, we see the path to Extraordinary Rendition and Guantanamo Bay. If we want to stop rights and freedoms being a political football and are more interested in outcome than process, then I would respectfully suggest to you all that the post-war human rights framework kicked off by Roosevelt and Churchill, is a pretty good starting point. Every country in Europe has not just signed and ratified but incorporated Winston Churchill’s Charter – in other words, the European Court of Human Rights – into their law, as we did, ten years ago, through the Human Rights Act. Other countries have Bills of Rights that stand alongside the incorporated European Convention or build on it. We could have that too. But if you want a stronger and better Bill of Rights, why base your whole argument on trashing fundamental human rights and the Human Rights Act and commit to repealing it. No-one but us in Europe is contemplating for a second deincorporating the European Convention on Human Rights from their law, and I can tell you now that if we were to do so, what if a little local issue would soon become an international incident? Why does no-one else consider this, because it is precisely there to stop us turning rights and freedoms into a weather vane to be flung hither and thither depending who is in power. If we turn on our backs on these common values and say we want to start again, make them up, reflect what the majority want, rather than what the minorities or individuals who struggled to have a voice need – if we create permanent revolution on rights and liberties and for ever re-evaluate what they are or should be – then please don’t be surprised if these apparently enduring rights and freedoms that apparently we are all going to agree on now, are up for grabs again the minute the next generation wants to consult on them. Please don’t be surprised if the goal posts in this game of football are for ever moving.
Please don’t be shocked if twenty years from now some of you are here spit outrage at the travesties of the next government and your failure to prevent it, just as some of us did twenty years ago, when this book, Decade of Decline was produced by Liberty about the trashing of civil liberties under the Thatcher Government. Only then there was no Human Rights Act or equivalent Bill of Rights to provide any protection against a system based entirely on the sovereignty of government because, as Douglas was effectively saying, let’s not kid ourselves, it is not the sovereignty of Parliament in most instances – decisions by public officials in those days could only be overturned if they were so irrational that the officials should probably have been locked up anyway. Banning Sinn Fein politicians from the airwaves or gays and lesbians from the army was seen as perfectly reasonable. The bureaucrats that Douglas rightly reminded us, had so much impact on our every day lives had no checks on them at all. And acts of Parliament were protected from review altogether! The courts could simply not look at them before we had the Human Rights Act. I have a list of the differences that the Human Rights Act has made, the hard core protections that it has provided for asylum seekers, for detainees, for people suspected of torture, for soldiers serving in Iraq , for mental health detainees etc. I’m not going to read it out, but just imagine if these had been the headlines in the Daily Mail for the last ten years instead of ‘Human rights for scoundrels’ or ‘Human rights to encourage sex in school showers!’ -that one got my nephew interested in my work for the very first time! Football as one effect, ignites passion and is fun. Defending common values from those who would destabilise them in order to score points and win games or elections is much less exciting. But I tell you, it is essential.
Michael Wills MP: Perhaps not surprisingly there is a huge amount of agreement between me and a lot of what has already been said. But there are some fundamental differences and I would like to spend my ten minutes talking about what I think is profoundly important in this debate. In answer to the question, how do we stop rights and freedoms becoming a political freedom, I agree we can’t but I also agree with Douglas Carswell that we shouldn’t, because rights and freedoms are at the very heart of our politics. Some of them, rightly, as Francesca Klug has said are non-negotiable, profound human rights, but rights and freedoms go much further than that and the reason that they are the stuff of our politics is because at their very heart, the battle of the individual to protect their individual liberties from being eroded by a careless or a malign state is actually a reflection of an even more profound issues which is always going to be the core of our political debate and that is power.
Individual rights and freedoms protect us, all of us, individually against the arbitrary exercise of power over us. Where power is located in our society, how it is distributed, how it should be exercised – these are fundamental issues for all of us. They are the stuff of politics. That is what political debate is about in a democracy, always has been and always will be. And of course that struggle for power is often won between the individual and the state. But it isn’t always the case. Enormously wealthy individuals can manipulate and cow a complex modern state, which is sometimes and conflicted by competing interests. This is one reason why I take profound issue with Douglas on this issue of direct democracy. It sounds great until you look at the history of referendums, and you look at the way that direct democracy can be manipulated by the wealthy and the powerful against the interests of the less articulate and most vulnerable members of society. Our system of representative democracy is not perfect by any means, but it is a protection for the weak and the vulnerable in a way that direct democracy is not. So I do disagree with him on that.
But equally, a benign state, and sometimes the state can be benign – the National Health Service was a creation of the state – can use its power to advance and protect the interests of the weakest and most vulnerable individuals who otherwise would be exploited and disadvantaged by wealthy, powerful individuals. In a healthy society, power is never concentrated. It is never in the hands of the few. It is always diffused as widely as possible and it should flow freely, because societies change and the distribution of power must reflect those changes. But inevitably, chemically, it tends to concentrate around the already powerful and rigorous, vigorous activity and debate is always needed to keep the powerful in check so that the rights and freedoms of all of us can be upheld. And that is not football: that’s politics.
There aren’t easy answers. I have read a lot of the documents produced in the run-up to today and the Anti-Social Behaviour Order features quite frequently, cited as an example of the erosion of liberty under this Government. But on the estates where vulnerable pensioners are being terrorised by gangs of thugs, and I can take every single one of you here to several such estates in Swindon now – I had an e-mail just before I came out from one of my constituents saying exactly what had happened to her last night at the hands of one of these gangs of thugs – those ASBOs have not destroyed the liberty of pensioners. They have secured it. We can debate the mechanism and we can debate the balance of proof, but in the end this is a question of power. How should the power of those gangs on the ground in those estates to destroy the fundamental rights of those pensioners to live in peace be contained. Sometimes the power of the state, properly accountable, properly scrutinised is the only answer.
Now I often hear the charge that this government and other governments as well, have used the cloak of security as a way of eroding civil liberties and of course there is always a risk that that should happen. But in making this charge we should not forget that there is always an inherent tension between those imperatives of security and liberty. There is a balance that has to be struck. Professor Grayling has talked about this today, but there is an argument about this, about what the first duty of a Government should be. But it is an argument on which people will take different views. Neither side is right: neither side is wrong. There is an argument to be had, and in democratic societies we resolve that democratically. How you strike that balance best between those two imperatives is a constant and enduring struggle for any government and actually for any people.
This country has got a proud record of human rights, and this Government is proud that it brought in the Human Rights Act to entrench those fundamental rights in British courts. We are proud of it. Sometimes it is uncomfortable for us, The courts have found against us. We abide by the judgment of those courts. But the most fundamental right of all is the right to life and Government has got to fulfil its duty to the people that it serves by protecting that right as best it can, for everybody. How you strike that balance between the need to protect the public from a real threat such as terrorism, and terrorism is a real threat, and the need to protect the civil liberties of every individual, that is a problem that confronts Government every single day. Now we can and should argue over where that balance should be struck case by case, but we can’t credibly deny that there is a balance to be struck and it runs throughout our public life.
The liberty that has represented the best of our history has never been a crude libertarianism. If you remove the power of government, you remove its power to protect the weak and vulnerable and this is not an easy balance to strike. We have heard a lot about data-sharing today, and in the run-up to today. But that data-sharing by public bodies which is already in place, some of which is already in place, some of which we are proposing to put in place – that data sharing which so many here today say is an unacceptable intrusion on privacy by the state, actually can help thousands and thousands of children who are eligible for free school meals but don’t actually get them at the moment to get those free school meals. (Response to audience protest) Well, it’s all very well for you to sit here – you’ve probably all had a hot meal in the last week – well I’m just telling you that one in five in my poorest wards have not had such a hot meal in the last week. We will come to the questions afterwards. I am just saying: we have a problem. We have to deal with it, and these powers help us to deal with it. There are three million people who are not registered to vote. The right to vote is the best guarantee of our liberty. Data sharing will help us get those people onto the electoral register so that they can exercise their democratic right to vote, and those people who are not on the electoral register to vote by and large are some of the weakest, most defenceless and vulnerable people in this country. You may not like these answers, but we have a responsibility in government to address them as best we can. Data-sharing is an answer. It is not an unfettered power. It has to be properly scrutinised: it has to be properly accountable and no doubt we can get the provisions better than they are. But we turn our backs on these measures at our peril because when you turn your back on the, you are turning your back on a remedy for wrongs that exist today in our society.
Now reconciling these different goods: security, liberty, the empowerment of the least powerful in our society in never easy. Language is crucial and I know that I have been talking about the importance and the inevitability of argument and debate. But we really have to be careful about anyone on any side of the argument being dogmatic that they have all the answers. Such dogmatism is dangerous wherever it comes from and it undermines the cause that it seeks to espouse. I want to give you some examples of this. To argue that the collective security of all must always override the rights and liberties of the individual is to embark on a path that twentieth century totalitarianism trod with such terrible consequences. And because those memories are so fresh, those who advance such arguments weaken the essential case that needs to be made for measures that protect the people of this country from the real threats that they face. But equally, to ignore the conflicts and the hard choices that governments and parliamentarians have to make in striking this balance between liberty and security, is to risk losing the democratic support of the democratic majority who want their individual rights protected in the way that the state has to protect them if it is to protect their security. The argument that ASBOs should be scrapped as an erosion of civil liberties, I can assure you, does not carry any weight at all on the Pinehurst estate in Swindon, and if all of you who have reacted so vocally to what I have just said today, sought to advance that argument there you would be howled down in the way you have just howled me down. This is a balance that has got to be struck and we need to respect all sides in this.
I just want to stress one thing. This is not an argument for avoiding unpopular positions. And I absolutely agree with what Francesca was saying about majority rule. Our constitutional arrangements are largely unwritten. They strike a careful balance between the areas of responsibility of the courts and Parliament and the Executive. These balances are very precious and they are deliberately and wisely not majoritarian. The lonely advocate of the unpopular can be a hero and I certainly don’t want to suggest anything otherwise. But we do have to be careful of respecting all those who take a different view. If you show disrespect to your opponents in this crucial area of public debate, you actually polarise an issue which only can be resolved effectively and sustainably through democratic dialogue and debate. When believers only talk to believers nobody else listens. And I can assure you that the Labour Party learnt that lesson bitterly in the 1970s and 1980s.
Government doesn’t always get this right, but neither do those who criticise it. And I’m going to say something that I suspect won’t get much support here. But the years since 1997 have not been, and I quote “ a crisis of liberty”, This is the government that brought in the Human Rights Act: it gave individuals the right to enforce their fundamental freedoms in a British court. It is the government that brought in the Freedom of Information Act. It is the government that brought in the Data Protection Act and established the office of the Informational Commissioner, that have given us quite a lot of trouble as a government, but rightly so. That is what we set them up to do. This is the government that has presided over the radical devolution of power away from the centre. Now of course people argue over the extent to which these reforms should to go and they call for them to go further. But that’s fine. That’s democracy. But you can’t deny the fact that this government has brought them in and that they are significant enhancements of individual liberty. Not to weight them in the balance is to manipulate the fact.
And the tone of all this debate matters. Now Francesca quoted from the ‘Abolition of Freedom Act 2009’. This is a very interesting and controversial document. And it is polemic. But look at this line from it, “Children are being groomed for life in the database state.” Now this a description of Contactpoint – a project that the Department of Children, Schools and Families have developed in relation to the Inquiry into the tragic death of Victoria Clombie. It is a measure designed to enable professionals who work with children who are vulnerable to keep in touch with each other, so that they know who is working with which child. It is a measure designed to protect vulnerable children and keep them safe. Now, quite apart from the melodramatic description of modern life, because after all, Google and Tesco and telephone companies – all of whom need to be accountable and scrutinised as well – are all hugely powerful component parts of the database state! This is language that is actually derived from an analysis of paedophile strategies. This doesn’t help sensible, rational discourse of these important matters at all. The removal of nuance destroys meaning. That was the goal of newspeke in 1984 where it was an instrument of the totalitarian state. Here in the real world meaning matters.
Francesca quoted the Guardian piece with its headline saying, “ Tories are proposing to bring in a Bill to restore British freedoms”. If you actually look at what they are doing, they are going repeal the Human Rights Act, and what they actually say is that their new bill of rights would ‘better tailor but also strengthen the protection of our core rights.’ What we need to know is – what are the core rights? And which of the fundamental rights and freedoms in the Human Right Act are going to be removed under this new bill? Mutual respect, honest dialogue are the only sustainable ways in which we resolve these difficult issues in the defence of liberty. If vigilance is the price of liberty then honest debate keeps vigilance alive and muscular. And that is why today can be so important.
