The Assault on Liberty: What Went Wrong with Rights

Writing around the same period as Mill, Karl Marx was contemptuous of the idea of liberty evolving in Britain in the nineteenth century. For Marx, rights epitomized a corrupt egoism, separating the individual from his real identity, absorbed as part of society: ‘Liberty, therefore, is the right to do everything that harms no-one else…It is a question of the liberty of man as an isolated monad withdrawn into himself.’

Marx argued that the individual would only be free once he conceived himself in terms of a wider collective. Marx criticized rights as purely formal legal constructs, divorced from any real or meaningful content – a right to property is meaningless to the homeless, free speech of limited value to the starving. In fact, liberty was worse than irrelevant because it crystallized unjust – middle-class – privileges at the expense the working class. As Lenin claimed: ‘Freedom in capitalist society always remains about the same as it was in ancient Greek republics: Freedom for slave owners.’

Marx’s theory of class struggle was based on the imperative to realize the real needs of humankind rather than the artificial attachment of a liberal and bourgeois elite to an arbitrary selection of formal rights that perpetuate an unjust status quo.

Fellow communists like Engels asserted – somewhat counter-intuitively – that ‘Freedom is the recognition of necessity’. The logical implications for the individual were sobering. Individual worth must be subordinated to the overriding imperative driving a Marxist society towards inevitable class struggle and revolution. Real freedom can only be achieved by recognizing and participating in that emancipation of the downtrodden from the shackles of capitalism.

Built on these philosophical foundations, socialism and communism were constructed in direct and aggressive antagonism to individual liberty. Marxism is all too willing to sacrifice the individual for the collective good. Communist revolutionaries were thereby given ample ideological justification for repressing individual liberty, captured by Lenin’s cold observation that: ‘Liberty is precious – so precious that it must be rationed.’

Armed with this moral justification, communist governments across the world routinely engaged in the most egregious human rights abuses throughout the twentieth century. This dogmatic ideological commitment to the collective allowed the most basic individual liberties to be easily brushed aside. It is estimated that the Soviet regime killed almost sixty-two million over a seventy-year period in the name of the socialist revolution, twenty million of whom died under Stalin. Some were executed, some died during famines precipitated by coercive Soviet economic policy and others perished in the gulag or working on slave-labour construction projects. Communist China’s Great Leap Forward, between 1958 and 1962, created mass famine that killed between twenty and thirty million. Yet neither Stalin nor Mao could match the Khmer Rouge for pure ferocity. The Khmer Rouge slaughtered two million out of eight million Cambodians – a quarter of the entire population – in an effort to purify Cambodia of all bourgeois influences and drag the country towards the mirage of communist utopia.

Subsequent communist governments recognized the atrocities of earlier regimes, perpetrated in the name of socialist revolution. Deng Xiaoping declared that Mao had only been 70 per cent right and Khrushchev criticized Stalin’s reign of terror. But such abuse of power was explained as a misapplication of socialism. Ironically, Khrushchev blamed the individualism of the Stalinist cult – rather than the totalitarian state – for ‘mass repressions and brutal acts of violation of Socialist legality’. Stalin’s excesses did not give grounds for an ideological shift – Marxism and liberty remained incompatible and irreconcilable – leaving intact the ideological weapon with which to attack personal freedoms.

During the Cold War, communist governments also relied on the Marxist conception of freedom to avoid signing up to human rights treaties. Two international human rights lawyers summarized the relationship between socialism and human rights: ‘Since the State by definition represents the interests of the people, the citizens can have no rights against the State…The socialist State expresses the will of the mass of the workers, and the individual owes it absolute obedience.’

Throughout this period the Soviet Union and other communist governments relied on their very different conception of freedom, and their cynical view of individual liberty, to avoid assuming any international human rights obligations under the guise that they would ‘interfere with domestic affairs’ and ‘sovereignty’.

However, the spread of socialist ideas beyond the Soviet bloc generated a number of treaties providing for social and economic rights, a more subtle reflection of the Marxist critique that civil and political liberties did not address people’s real needs. The International Covenant on Economic Social and Cultural Rights 1966 included rights to work, a fair wage, healthcare, education, the right to take part in cultural life and the right to enjoy the benefits of scientific progress. In reality, the Covenant reflected aspirations not rights. These new rights could not be judicially enforced in domestic courts in the way that, for example, illegal detention can be challenged or the right to protest asserted in specific cases.

This attempted compromise, coupling civil and political liberties with other ‘rights’, was reflected in the approach of continental European governments, which had historically, philosophically and culturally been much more susceptible to socialist influence. The development of social democratic movements on the continent can be seen as an attempt to forge a compromise between the two conceptions of freedom that otherwise stand in clear and unequivocal conflict with each other. The influence of this attempted synthesis – between Marxism and liberalism – has extended beyond domestic politics, to the development of a common European identity through the supranational institutions of the Council of Europe in Strasbourg and the EU in Brussels.

In Britain these twin strands of socialism lay beneath the surface of the New Labour project that swept Tony Blair into power in 1997. Both ran against the traditional grain of British liberty. Marx had a less powerful, but nonetheless enduring, influence in Britain. New Labour had successfully concealed, rather than extinguished, the orthodox brand of socialism, and Tony Blair managed formally to dislocate the Labour Party from the dogma of public ownership of the means of production during his famous ‘Clause Four’ moment in 1994. Nevertheless, the Labour Party’s updated constitution still stubbornly described it as a ‘socialist’ party.

Looking around the table at Tony Blair’s new Cabinet of Ministers in May 1997 and more broadly across the corridors of power in Whitehall, a surprising number of ministers and key advisers, including John Reid and Peter Mandelson, were formerly Communist Party members, allies or associates – including two Home Secretaries, until recently the cabinet minister responsible for the Human Rights Act. Other cabinet ministers with previous communist or Trotskyite connections include Charles Clarke, Stephen Byers and Alan Milburn. Marxism had been a key influence on them during their formative years, and once in power they were not passive bystanders. They propelled the New Labour agenda and rose rapidly through the ministerial ranks. Given the Marxist antagonism towards individual freedoms, they were unlikely to provide an instinctive defence of British liberty, and more likely to join – if not drive – the imminent assault.

If what one commentator has called the ‘liberty reflex’ was replaced with a Marxist disposition amongst a leading cabal in government, there was a further – more surreptitious – thread running through the New Labour machine, most notably Tony Blair, which would further erode the British tradition of liberty from an altogether different direction. The new Prime Minister was determined to ‘lead in Europe’, putting Britain at the vanguard of European policy-making after years of Conservative foot-dragging. While successive administrations had sought to ignore the growing irritant created by adverse rulings, and the increasing rate of dubious case law, from the European Court of Human Rights in Strasbourg, the incoming government took active steps to increase the flow by enacting the Human Rights Act in 1998, thereby incorporating the European Convention and all its case law directly into UK law. The government was palpably relaxed about the prospect of importing the European approach to human rights, grounded in the social democratic tradition. It ignored the risk of diluting the British liberal tradition through an expansive European approach to human rights that pursued social and economic justice, exponentially extending the scope of ‘rights’ and inflating – rather than restraining – the role of the state.

While ideological baggage and European strategy boded ill for British liberties, New Labour tactics would only make matters worse. Tony Blair, Gordon Brown and the other architects of New Labour correctly calculated that winning back public confidence in the Labour Party meant seizing the centre ground of politics. In order to achieve this, a policy of triangulation was constructed. In crude terms, the electoral plan of attack involved dumping the most obvious outward trappings of the party’s socialist heritage, outflanking the Conservative Party by matching, if not surpassing, its tough stance on crime and security and promising Labour’s grassroots supporters a step change in investment in public services – a more subtle and publicly palatable means of redistributing a large volume of the nation’s wealth than a sustained programme of nationalization.

The second element in this equation would tempt the government, time and time again, to embark on grandiose security gestures that rode roughshod over fundamental liberties with negligible countervailing benefits in terms of public safety. The third element, massive additional spending on public services, would harness the expansion of the idea of human rights, well beyond anything previously recognized in Britain, as a visible vehicle for claiming credit for fighting the social injustice that New Labour claimed to have inherited from the Thatcher years.

The outcome of the election in May 1997 added a further practical consideration, which strengthened the government’s hand in the looming assault on liberty. Having secured a landslide overall majority of 179 seats in the House of Commons, the new administration was well placed to force through virtually any legislation without serious risk of defeat. The sheer volume of new criminal law and security measures, introduced by the new government over the course of a decade, would displace the common law presumption in favour of personal freedom that held sway in this country for centuries.

In this way, a constellation of disparate factors gathered that would pose the most serious threat to the British legacy of liberty in post-war history. Built from scratch, nurtured and defended – through periods of monarchical despotism, civil war and attempted foreign invasion – ancient British freedoms found themselves under siege from an unconventional and unscrupulous wolf in sheep’s clothing. The previous rough consensus on the minimum fundamental rights of the citizen – shared more or less by successive Conservative and Labour governments – was cast aside, as the new Labour administration prepared to embark on a relentless and historically unprecedented assault on British liberty.

PART II WHERE DID RIGHTS GO?

2 Security versus Liberty

‘We must plan for freedom, and not only for security, if for no other reason than that only freedom can make security secure.’

KARL POPPER

Since New Labour came to power Britain has suffered a sustained attack on its tradition of liberty, with the government regularly claiming that stronger measures are justified to strengthen our security and make us safer. This unprecedented assault on our fundamental freedoms has been waged on diverse fronts, with justifications clustered around three principal rationales.

First, the government has argued that decisive action is needed in response to a unique danger, namely the terrorist threat posed by al-Qaeda and related fanatical groups. Second, it has justified its actions in the sphere of law enforcement and criminal justice on the basis of the overriding imperative to cut crime and tackle anti-social behaviour. Third, it has massed a range of powers to watch, intercept and gather private details on its citizens on the basis that such inroads on our privacy will make the individual, and our society as a whole, safer. The common denominator is the assumption that, when push comes to shove, security can be traded for – and should be prized above – liberty, a tough but necessary choice that many, at least at first sight, may intuitively be inclined to accept.

The difficulty with this analysis is that liberty and security are rarely stark alternatives or juxtaposed choices. The government has assumed the existence of a hydraulic relationship between freedom and security, a zero-sum game in which we have a genuine choice to pay a price in terms of our personal freedom, in order to yield a security dividend that provides greater public protection against violent crime and terrorism. But is the real world that straightforward, and does this paradigm provide more than a simplistic gloss, a political crouch that obscures a more complex picture? Draconian measures will always undermine liberty. But there is scant evidence that they have made us safer.

An alternative assessment, supported by a growing body of evidence over the last eleven years, is that the government’s attack on our core freedoms has not yielded any clear, significant or demonstrable security dividend; indeed, it has often had the reverse effect, jeopardizing rather than strengthening our security.

In the field of counter-terrorism, the government’s approach has fixated on a number of high-profile gestures, including extending detention without charge for terrorist suspects, introducing control orders and pressing ahead with ID cards, amongst a package of other authoritarian measures. While the government has moved to raise the limit on pre-charge detention sixfold since 2003, the rate of home-grown radicalization and the numbers involved in terrorist-related activity have only grown faster, at a current rate of 25 per cent per year according to MI5 – hardly the symptoms of successful policy.

When it comes to fighting crime, the government has created more than three thousand new criminal offences and attacked fundamental pillars of British justice, including the presumption of innocence and the right to trial by jury. Yet, at the same time, violent crime has nearly doubled, the UK has the second highest crime rate in Europe and fatal stabbings and gun violence have surged.

Nor has the exponential increase in surveillance powers by the state improved public safety. Eighty per cent of CCTV footage is not fit for purpose. The government loses personal data on a regular basis, exposing those it is charged to protect to unnecessary risk. And, far from helping police to crack down on fraud, one Chief Constable predicts the government’s flawed proposals for ID cards will set the ‘gold standard’ target for criminal hackers.

As one commentator, Jenny McCartney, characterized the approach:

A pattern is emerging in the way that Britain deals with any kind of threat…It acts like a terrified but sieve-brained householder who tries to foil prospective burglars by putting expensive, complicated locks on the top windows while frequently leaving the back door swinging open…

The Faustian bargain that New Labour has traditionally offered the public is that we should submit to ever more intrusion in exchange for greater security. What we are getting now is intrusion and insecurity – and even Faust managed a more attractive deal than that.

Time and time again since it came to power in 1997 the government has presented tough measures that infringe fundamental liberties as a price worth paying to make the public safer. The serious charge to be laid against this government is that its confused approach has been driven as much by considerations of PR as national security. The government has deployed increasingly dramatic rhetoric with each new announcement, heralding serious inroads on our fundamental freedoms, with precious little improvement in public protection to show for it. Far from offering a finely balanced trade-off, or even a Faustian bargain, the government’s approach has turned out to be a straight con – leaving us both less free and less secure.

We have become accustomed to national security being regularly cited as one of the main grounds for sacrificing individual liberty, particularly in the aftermath of 9/11 and subsequently the 7/7 attacks in London. Yet Britain has faced serious threats to its national security before, without knee-jerk resort to such far-reaching, unfocused and permanent measures that seek to redefine the fundamental balance in the relationship between the citizen and the state.

During the Second World War identity cards and internment were introduced in the face of global war and direct military attack. In 1940, faced with the Blitz and the real prospect of a Nazi invasion, the government interned a range of ‘enemy aliens’, principally Italian and German civilians living in Britain. Around eight thousand were detained although most had been released by 1942 and the legal basis was revoked at the end of the war. Yet, as A. C. Grayling notes, from 1940, faced with an imminent invasion by Nazi Germany, temporary measures were taken that undermined individual liberty. In contrast today, ‘in face of a far lesser threat’, Britain is ‘enacting permanent legislation of even more draconian kinds’.

Churchill only reluctantly introduced temporary wartime measures that infringed individual liberty, removing them once the immediate exigencies allowed. When Oswald Mosley, the notorious Nazi sympathizer, was released from internment in 1943, Churchill sent a telegram to the Home Secretary justifying the decision in the following terms:

[T]he great privilege of habeas corpus, and of trial by jury, which are the supreme protection invented by the English people for ordinary individuals against the State…The power of the Executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers – is, in the highest degree, odious and is the foundation of all totali tarian governments…Extraordinary powers assumed by the Executive with the consent of Parliament in emergencies should be yielded up, when and as, the emergency declines…This is really the test of civilisation.

Faced with a very real threat to national life, in one of the darkest moments in British history, the government of national unity took finite and temporary measures to meet the specific, overwhelming and undeniable threat.

Since then, our fundamental freedoms have come under periodic strain, most regularly in the context of the struggle against terrorism. The conflict in Northern Ireland lasted for around thirty years and cost 3500 lives, including more than 1800 civilians. Britain undoubtedly faced a real and sustained terrorist threat, and the government took measures against IRA terrorism that incurred human rights challenges and political controversy – including, most notably, the use of internment and Diplock courts (the latter allowing criminal trial of those accused of terrorist suspects without juries). Nevertheless, over a thirty-year period, internment lasted for only four years and withstood legal challenge at the European Court on Human Rights, which accepted that it had been required by the exigencies of an emergency situation. In practice, internment proved a disaster – fuelling the resentment and violence it was introduced to contain – and was replaced for the rest of the conflict with a maximum limit of seven days’ pre-charge detention, a fraction of the maximum period now in place in Britain.

Equally, Diplock courts were used between 1973 and 2007 because of the clear and serious threat of witness intimidation amidst the sectarian conflict, which successive governments – of both main parties – accepted was undermining efforts to bring criminal prosecutions against those accused of paramilitary violence. While a judge replaced the jury as the trier of the facts in these cases, the measure applied to paramilitary groups on both sides of the conflict, trials remained public and were subject to appeal.

The conflict threw up a range of other human rights controversies – including miscarriages of justice arising from police misconduct (such as the Birmingham Six and Guildford Four) and criticism of the shooting by British special forces of three IRA members in the course of trying to set off a bomb in Gibraltar.

Beyond the conflict in Northern Ireland, the Spycatcher episode arose out of the government’s attempts to ban the publication of a book written by Peter Wright, a former MI5 officer, between 1987 and 1988. The book was published in the US and Australia and the government was eventually defeated in its attempt to prevent publication and bring related claims against the Sunday Times and Guardian.

No previous government can claim a perfect record on civil liberties, yet it is difficult to avoid the impression that the deliberate and concerted assault on liberty throughout the last decade has been without precedent – of a different order of magnitude to the ad hoc incursions that preceded it.

While the new government introduced a range of repressive new measures from 1997, the most serious attack on fundamental liberties in the name of national security took place after 9/11, when the government sought to introduce indefinite detention without charge for foreign terrorist suspects, and gathered momentum with its hastily put together response to the London bombings in July 2005. At a press conference less than a month after the dust had settled on the attacks in central London that left fifty-two people dead and many more seriously injured, Tony Blair reacted with a list of twelve new security measures, announcing a radical change of approach: ‘Let no one be in any doubt, the rules of the game are changing.’

With this dramatic gesture before an audience of journalists, the then Prime Minister ostentatiously signalled that the struggle against terrorism would no longer be shackled by the traditional safeguards that protect those suspected – but not yet convicted – of involvement in any crime. In the years that followed, the government would introduce a range of measures that would undermine British liberty in the name of fighting terror. Proposals for ninety-day detention without charge, control orders amounting to house arrest, compulsory ID cards and a slew of measures that stifle free speech were proposed as the necessary means of countering the rising threat of al-Qaeda-related terrorism in Britain.

New laws were rapidly formulated and presented by a government desperate to find a legislative way to demonstrate its security credentials in the wake of two terrorist attacks on the capital. Reactive legislation was broadly – and poorly – drafted, often rushed through Parliament under pressure of time that prevented proper scrutiny. Almost inevitably, the new powers were widely construed, without clear focus, which both blunted their operational effectiveness in countering terrorism and left them susceptible to abuse by law enforcement officers acting under operational pressures.

Looking back at Tony Blair’s press conference in August 2005, it is instructive to note the fate of the twelve-point plan he announced, each measure of which was hailed as ‘either being taken now, immediately, or under urgent examination’. Many of the eye-catching measures rushed out were quietly abandoned or rendered unworkable – Hizb ut-Tahrir has not been banned, grounds for deportation have been restricted not expanded, the idea of a maximum time limit on extradition dropped and border controls remain porous.