The Assault on Liberty: What Went Wrong with Rights

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.

The same clause of the Bill of Rights added a ban on the infliction of ‘cruel and unusual punishments’, an early precursor to the modern ban on torture. Today, the legal standards applied in the UK, European and UN human rights law developed from this early definition, set out more than three hundred years ago. Students, journalists, political activists and others challenge or protest against the government, confident that they will not be persecuted for their views or political activities, as they are elsewhere. There would be widespread outrage in this country if the state engaged in the kinds of murder or torture of its citizens that take place in many other parts of the world – including Russia, Iran and Sudan. Allegations of torture by British troops in combat are investigated seriously, and UK cooperation with foreign agencies accused of practising torture attracts intense scrutiny.

The Bill of Rights also contains one of the earliest guarantees of freedom of speech, declaring that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place out of parliament’. The freedom to think and say what we like, without inciting violence or harming others, is fundamental to the idea of liberty in this country. This right – and the related freedoms of worship, conscience and peaceful protest – developed from the early struggle for religious freedom during the Reformation into the modern rights we enjoy today.

From the moment we wake up in the morning and pick up a newspaper, we take it for granted that a full range of competing views and perspectives will be presented on any issue of the day. We expect to hear every conceivable criticism of government and politicians. Consciously or not, we form our own views on the basis of the plethora of information and views regurgitated through an exceptionally free and exuberant media. It is difficult to imagine what it must be like to live under the blanket censorship that hides what is really going on in countries like North Korea. British protection of freedom of speech is also stronger than in many other democracies. In France, for example, there are legal restrictions on the media reporting of the private peccadilloes – and more serious improprieties – of politicians that would be unthinkable in Britain.

The scope for freedom of speech exploded with the advent of radio, television and, later, the internet – the modern medium for social interaction and popular debate, allowing individuals, groups, campaigners and businesses to exchange ideas and opinions twenty-four hours a day, seven days a week, across the world. We take these freedoms for granted in Britain, whereas others cannot. In China, for example, the government censors the internet. So, if you Google the Falun Gong, the banned spiritual movement, the Chinese service provider will direct you to those hits that provide negative commentary. China also restricts internet content on Tibet and those calling for democratic reform. Closer to home, even Turkey, an aspiring candidate for membership of the European Union (EU), censors internet criticisms of Kemal Atatürk, the founder of the country’s modern secular republic, an action that would be unheard of in this country.

From the freedom of speech inside Parliament, under the Bill of Rights, developed our freedom of speech and the right to peaceful protest outside Parliament. For the politically active, peaceful protest – from a single demonstrator through to mass rallies – serves as a means of voicing concerns, grievances or criticisms of the government. It is particularly important during periods of political controversy to allow the ventilation of strongly held views. Governments cannot satisfy everyone. But they can – and should – allow the expression of a full range of competing views. People in this country take pride in the right to peaceful public protest. Even the politically disinterested generally expect the right to be tolerated, however obscure or unappealing we may find the views of particular protesters. It is inconceivable that the tanks could roll into Trafalgar Square to crush peaceful protests against the war in Iraq, as they did in Tiananmen Square during the brutal crackdown on protesters in 1989 that left hundreds of students dead, or that Britain could routinely jail and intimidate peaceful protesters, as Chinese police did to silence democratic voices of dissent during the 2008 Beijing Olympics, at the 2012 London Olympics.

While fundamental rights began to emerge from the thirteenth century, and would become one of the pillars of our liberal democracy, they were not conceived in isolation – they were not the only pillar in the nascent democratic architecture. Magna Carta built on the emerging common law system, created by Henry II in the twelfth century and based on uniform and consistent courts respecting ‘precedent’ – the rulings laid down in previous cases. The common law underpins the rule of law in the UK – with the exception of Scotland, which operates a civil law system – but is also inextricably interwoven with the idea of freedom under law. It is based on a unique and powerful presumption of liberty, the presumption that the individual is free to do anything that has not been expressly forbidden or restricted by law.

The Bill of Rights reinforced the rule of law, by entrenching law-making power in Parliament and restraining the exercise of legislative power by the Crown. It also helped mould a separation of powers between government, Parliament and the courts – a system of checks and balances to prevent any one branch of the state from dominating the others or abusing its power. The Act of Settlement 1701 later reinforced the separation of powers, bolstering both the role of Parliament and the independence of the judiciary.

Above all, the development of freedom under law and democracy in Britain went hand in hand, preserving the liberty of the individual and decentralizing power to the people. The Bill of Rights declared: ‘That election of members of parliament ought to be free’, and required that ‘for redress of all grievances, and for the amending, strengthening and preserving of the laws, parliaments ought to be held frequently’. The constitutional design was based on the election to Parliament of those mandated to make the law of the land. Slowly but surely, the number of people entitled to vote in elections expanded. A series of reforms, starting with the Reform Act of 1832 and culminating in the Representation of the People Act 1983, widened the electoral franchise. Women first received the vote in 1918, in recognition of the sacrifices made during the First World War, and the threshold age for men and women was eventually lowered to eighteen in 1969. The Parliament Acts of 1911 and 1949 further consolidated the power of the directly elected House of Commons, at the expense of the House of Lords.

In this way our fundamental rights were originally designed to support, reinforce – but also respect – the other building blocks of our democracy: the rule of law, separation of powers and parliamentary democracy. ‘Rights’ were not something separate from democracy, but part of it. It is a worrying feature of the modern debate that the expansion of new human rights increasingly runs against the grain of the rule of law and the principle of democratic accountability for law-making.

Civil war served as a powerful catalyst and, from the seventeenth century onwards, these constitutional developments both reflected and inspired an emerging tradition of liberal British thinkers. At first blush, Thomas Hobbes appears an unlikely liberal. A royal tutor, cynical about human nature and a determinist, Hobbes advocated firm governmental authority to rescue mankind from its natural, brutish and anarchic state. Nevertheless, he was one of the first to secularize the concept of political authority, resting it on the notional consent of the people rather than divine right. He developed the idea of a social contract, between ruler and ruled, at a critical juncture in our history. He represents an early pioneer of the principle of government by consent of the people – the basic idea underpinning all subsequent theories of democracy.

John Locke built on Hobbes’ early insights. He was the first British thinker to articulate a meaningful conception of freedom under law. He did not define with precision the list of freedoms he had in mind, let alone their content, but his general direction was clear enough: ‘[A]ll men may be restrained from invading others rights.’ In particular, no one is permitted, unless for the purpose of giving effect to justice, to ‘take away, or impair…the life, the liberty, health, limb or goods of another’. Those words left their historical mark, providing the formula adapted by Thomas Jefferson to the ‘unalienable Rights’ of ‘Life, Liberty and the pursuit of Happiness’ set out in the United States Declaration of Independence. If Magna Carta and Bill of Rights strengthened the protections of the citizen from government, Locke extended this idea to include protection of our fundamental freedoms from other threats to individual liberty – whether from repressive laws duly passed in Parliament, or wider abuse from intolerant quarters of society. Today, whether it is taking a stroll round the block, voicing displeasure at politicians or just exercising the typically British prerogative of keeping oneself to oneself, we are taking advantage of this basic idea of liberty inherited from Locke.

Locke’s ideas on personal freedom were not set in a vacuum, but tied to his theory of social contract, woven together by his views on political constitution. He wrote: ‘…freedom of men under government is to have a standing rule to live by, common to everyone of that society, and made by the legislative power erected in it; a liberty to follow my own will in all things where the rule prescribes not; and not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man’.

For Locke, liberty was inextricably linked to the rule of law. He recognized that government, Parliament and the courts were all capable of abusing their powers. He justified a separation of powers precisely ‘because it may be too great a temptation to human frailty apt to grasp at power, for the same persons who have the power of making laws, to have also in their hands the power to execute them’. So, too, the rule of law needed ‘indifferent and upright judges, who are to decide controversies by those laws’. Locke was one of the first to foresee the importance of maintaining a balance between the powers of government, Parliament and the courts.

Britain may not have a written constitution, and there is no formal or rigid separation of powers, but as a senior judge in the House of Lords has described: ‘[it] is a feature of the peculiarly British conception of the separation of powers that Parliament, the executive and the courts each have their own distinct and largely exclusive domain’. In recent years, that basic constitutional division of labour has come under increasing strain. Outspoken judges have been more and more critical of government policy. Ministers in turn have issued scathing remarks about the criminal sentences handed down by the courts. The Human Rights Act has blurred the lines of responsibility between all the three branches of the state. And the government has regularly been accused of marginalizing Parliament, particularly with respect to the conduct of foreign policy and the loss of parliamentary law-making powers to the EU.

If Locke is the point of departure for modern liberalism, John Stuart Mill developed his conception of individual liberty two centuries later, strengthening the case for protecting the citizen from the ‘tyranny of the majority’ as well as that of the state. Mill’s central principle remains relevant today: ‘[T]hat the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant.’

Mill warned against the ‘despotism of custom’ and embraced the ‘diversity of character and culture’. His vision was a pluralistic society where individuals experiment as they wish with ideas, beliefs, practices and the general business of running their own lives. His defence of liberty was based on both its value to the individual and to society, as he directly identifies one with the healthy development of the other: ‘[I]t is important to give the freest scope possible to uncustomary things, in order that it may in time appear which of these are fit to be converted into customs.’

When Mill defends particular liberties, such as the freedoms of thought, religion and speech, he also has firmly in mind a wider benefit, beyond the individual, that comes from guaranteeing the expression of competing views. His comment, ‘[h]e who knows only his side of the case, knows little of that’, shows his concern with the ossifying of lazy, untested opinions into dogmatic truths. Mill explicitly links the competition of ideas – made possible in a vibrant, free society – with human development and social progress. His instinctive hostility to paternalism remains an enduring influence on the modern debate about limits of interference by the nanny state in our daily lives, whether it is the smoking ban, rules on parents smacking their children or the introduction of compulsory ID cards.

Mill’s idea of freedom was built on a mistrust of government, even the democratic kind. He recognized that a free country needs more than just elections. It needs to preserve and protect individual liberty. As the American Founding Father Benjamin Franklin quipped: ‘Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.’

If Mill acknowledged the limitations of formal democracy, it was Isaiah Berlin who was honest about the limits of liberty. An Oxford don for most of his professional life, Berlin was born and raised in (what was then) Russia until the age of twelve. He witnessed the Russian Revolution and, as a Jew, felt keenly the horrors of German fascism. His hometown, Riga, was situated along one of the battle lines of the Cold War. Berlin rejected the idea that there was a single coherent theory of life, history or human meaning. He described the belief that ‘there is a final solution’ to the great philosophical questions in life – with the theories that underpinned both communism and fascism firmly in mind – as bearing the greatest responsibility for ‘the slaughter of individuals on the altars of the great historical ideals’. He recounted Immanuel Kant’s adage that ‘from the crooked timber of humanity no straight thing was ever made’. From this conception of history and life, Berlin made the case for pluralism and liberty. He defined and defended ‘negative freedom’, which he associated with fundamental liberties and collectively characterized as ‘the area within which a man can act unobstructed by others’. But he was not dogmatic, recognizing that the precise parameter of an individual’s rights was a ‘matter of argument, indeed haggling’.

Berlin was just as clear about the limitations of relying on liberty. Responding to the classic riposte that freedom so narrowly defined means nothing to the poor peasant or starving child, he readily agreed: ‘Liberty is not the only goal of men’ – and might not mean much to those living in poverty or squalor. Nevertheless, Berlin argued, it was preferable to discount the relevance of liberty – as an inadequate answer to social inequality – than confuse it with some wider mission to achieve social justice, let alone try to expand its scope to incorporate the latter: ‘Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.’

Berlin defended the British idea of liberty, but he kept it in perspective. He acknowledged the need to weigh liberty against other aspects of the public interest – today brought into sharper focus by the demands on law enforcement in fighting crime and terrorism. Perhaps most importantly, Berlin recognized that liberty is not the only – or even the most important – thing we value in life. You cannot pay the mortgage with habeas corpus or raise a family standing on a soap box at Speaker’s Corner in Hyde Park. Most of us will never need to rely on the safeguards that make a criminal trial fair. Berlin defended liberty as a pillar of our liberal democracy, but was under no illusion that it could somehow eradicate social inequality, cure cancer or stop global warming. At a time when every gripe and grievance in modern life can be dressed up as a violation of someone’s human rights, Berlin reminds us of the risks of inflating rights and presenting them as a panacea for every ill in the world.

These, and many other influential thinkers, contributed to the philosophical, historical and constitutional development of a unique British model of liberal democracy, a model in which freedom under law supports and reinforces a system of parliamentary democracy. Our civil and political liberties represent the first and fundamental freedoms we enjoy as citizens of this country. They are the crown jewels of our liberal democracy, carving out an area of autonomy, free from the interference of the state, which is enjoyed by every individual as of right.

We take advantage of British liberty without thinking about it. We spend most of our waking lives preoccupied with making a living, paying the bills, spending time with friends and family and pursuing the range of things that give value and meaning to our lives. Yet, in an increasingly apathetic age, it is worth recognizing the extent to which such carefree indifference is the privilege of living in a free country. The ability to dislocate ourselves from politics, public debate and the prying eye of the state is a testament to freedom under law, which has traditionally been protected in Britain and is now under threat. Even if we take our freedoms for granted, much of what we do on a daily basis is dependent upon liberty, or would soon vanish without it.

The freedom to switch off and get on with our lives unmolested is not something that happened by accident. The apathy option was won through great sacrifice. It took seven hundred years of inspiration, perspiration and, above all, struggle to crystallize the British idea of – and commitment to – liberty, in clearer and sharper form. As one historian summed up, it ‘cost blood, and took centuries’. In 1939, Churchill characterized and inspired Britain’s lonely defiance of the totalitarian menace sweeping Europe in terms of:

a war, viewed in its inherent quality, to establish, on impregnable rocks, the rights of the individual…a war to establish and revive the stature of man.

During that war alone, hundreds of thousands of British soldiers and civilians died, an immense sacrifice for the liberties we leisurely enjoy today. While the British commitment to liberty withstood the assault from fascism, it faced another serious – and more sustained – onslaught, this time from the authoritarian left.