Jack Straw Continues War Against 350 Years of British Liberalism

Posted in Civil Liberties, Politics, Society at 12:01 am by Paul Sagar

Last Monday Jack Straw introduced a green paper to the House of Commons for a proposed “Bill of Rights and Responsibilities.”

In doing so Straw continued his war on 350 years of hard-fought, hard-won British liberal rights.

Below I will go through Straw’s speech to the Commons. I aim to highlight key areas of concern for anyone who believes that British citizens should have unconditional rights which are constraints upon what the State may do to them. The alternative – Straw’s alternative – is for rights to be removable privileges which are gifted by the Government, conditional upon good behaviour (as defined by those in power).

To understand where I am coming from, you first need to read this. It’s a piece by my former Balliol tutor Bob Hargrave. It’s also the best single on-line resource for thinking about rights and understanding what New Labour has been doing to yours.

The Hargrave piece will be controversial for political philosophers, who may prefer to follow an interest theory of rights. Put aside those controversies for now, and focus on the core message of how to think about rights in the British liberal tradition: Rights are not privileges of citizenship gifted by the State. They are pre-requirements of meaningful citizenship which impose constraints and obligations upon the State, and thereby facilitate a free society.

This has important ramifications. For the British liberal tradition, there are certain choices, activities, expressions, associations and disseminations which are so important to human life that being able to undertake them is a pre-requisite of meaningful citizenship. In a free society people are  able to talk with, associate with, publicise with whoever and whatever they want, without first needing permission from the Government. If, in the act of talking, associating or publicising, a person should break the law, the State may retroactively correct for this through the legal system, (or use legal means which observe people’s right to prevent crime). The State should not de-bar essential aspects of life in free human society by dictating that until individuals have demonstrated their “responsibility” to the State (and as defined by the State) they are not granted “rights” to behave as free agents.

An upshot of this approach is that some citizens will sometimes use their freedom - protected and enabled by their rights - to associate with unpleasant or even dangerous groups, disseminate unpleasant or even dangerous ideas, or say unpleasant or even dangerous things. When those unpleasant citizens carry their unpleasantness to the point of breaking the law, the state acts to punish or correct them in accordance with the law. Until then, everyone is free to act until they break the law (though the State may act to prevent law-breaking, if it can prove within a legal system which observes people’s rights that the law would have been broken beyond reasonable doubt).

This is because people have rights, as citizens. Their rights are not dependent upon them being “responsible” citizens to Government. This approach ensures that people’s actions are free, and that society is free in turn. The alternative is for people’s actions to be conditional upon the whim of the State, whether or not they have yet broken any law.

And yes, sometimes that means terrorists, violent dissidents and other nasty groups will exploit the freedom of a free society to attack that society. But that is the price we pay for freedom.

Given the historical rarity of such a commodity as social, political and economic freed, did you really expect it to come cheap?

Let’s now turn to Straw’s speech, taken from Hansard.

“With permission, Mr. Speaker, I should like to make a statement on the Green Paper “Rights and Responsibilities: developing our constitutional framework”, which was laid before Parliament today. It is the next stage in what has been described as a quiet revolution in our constitutional arrangements, which, since 1997, has included: independence for the Bank of England; devolution for Scotland, Wales and Northern Ireland; independence for National Statistics; the Human Rights Act 1998; the Freedom of Information Act 2000 and the Data Protection Act 1998; and reforms to the House of Lords and of party funding.”

Just focusing on Straw’s reference to the Human Rights Act, let’s not forget that he gave credence to the view that this piece of legislation is “a villains’ charter” just last year. That helps give a good indication of what he thinks about legislation which invests citizens with core rights not dependent upon the good will and whim of governments.

“This Green Paper deals with some of the most fundamental questions we face as individuals and as a society: how we live together; what rights and freedoms we enjoy, and from whom; and what duties and obligations we owe, and to whom. Those issues are not abstractions, removed from the practical politics of jobs and housing, health care, education, crime and disorder, because these constitutional arrangements determine how power is distributed, and therefore the conditions in which every other question in our public life will be answered.”

OK.

It is because of the centrality of these issues that my right hon. Friend the Prime Minister chose to make his first major policy statement, within days of taking office, on exactly this matter of constitutional change. He told this House that it was right to involve the public

“in a sustained debate about whether there is a case for the United Kingdom developing a full British Bill of Rights and duties”.—[ Official Report, 3 July 2007; Vol. 462, c. 819.]

Will the involvement of the public be along the lines of the public involvement in e.g. the signing of European treaties? That is, adopting the tested New Labour model of telling the public what is going to happen and labelling it a “debate” before ignoring any and all opposition.

“This was to be as a step towards a written constitution. The Green Paper presents the arguments for such a Bill. It does not reach final conclusions—that is for the end of the process of national discussion—rather, it sets the framework for this debate. Indeed, if by the end of the process the Bill is perceived to provide protection to rights and freedoms, it will become effective in defining common values so that people in Britain of different backgrounds may feel ownership of it.”

OK so that’s mostly just jargon. Again there is a vague gesture about “national discussion”. More importantly, this green paper is supposed to “set the framework for this debate”. So what Straw tells us here, and what the Government dictates will be in the Green Paper, is “setting the framework”. So we should pay attention.

“From the Magna Carta and the declaration of Arbroath, the 1689 Bill of Rights and the Scottish Claim of Rights, to the great Reform Acts of last two centuries, our history illustrates the proud traditions of liberty on which our nation is built. Though the profound changes that those great texts initiated were the subject of intense struggle at the time, the United Kingdom’s experience of constitutional development has been unlike that of almost any other democracy in the world.”

1. Observe that the New Labour “Rights dependent upon Responsibilities” model is directly opposed to the “Rights generate responsibilities from the State” model of British liberal tradition.

2. It is true that the UK’s constitutional development has been somewhat unique. But from that alone nothing follows.

“The constitutional arrangements of most other nations have emerged from rebellion, revolution, civil war, occupation or oppression. The United States, France, India, South Africa and nations across Europe and the world, have had to set down their arrangements in a single text—a constitution, underpinned by declarations of rights. Whether legally enforceable or not, they have become abiding points of reference as to how their citizens should relate to each other and to the state, and help to define the kind of nation they wish to be. This Green Paper sets out the case for how a Bill could become a similar unifying force for the United Kingdom, not least because our own society is much more diverse, in race, religion and ethnicity than at any point in our history.”

Straw is here implying that the UK’s history is so radically different from the rest of the world that we simply haven’t needed a bill of rights before, whereas those other unfortunate countries suffering revolution or occupation needed to establish constitutional safe-guards of citizen rights due to the desperation of their situation. Things to notice about this:

1. Straw is apparently implying that the UK needs a bill of rights (and “responsibilities”) because we are suffering some sort of comparable emergency to occupation or revolution. Given his reference to diversity of “race, religion and ethnicity”, are we to take it that Straw believes the influx of immigrants to the UK over the past 60 years threatens our social stability to the extent that we need written constitutional safeguards analagous to those following State revolution or invasion? Cynics may see a reccuring pattern in New Labour thinking here: will the Bill of Rights and Responsibilities include “British Jobs for British Workers”?

2. The documents to which Straw refers, in particular the constitutions of France and the United States, are documents most definitely written in the British Liberal tradition. The American Constitution and Bill of Rights are explicitly Lockean [i.e. based upon the thought and work of great British liberal philosopher John Locke, most notably his Second Treatise of Government]. They are  constructions imposing limits on the actions of the State and guaranteeing citizen rights to life and property against the encroachment of the state. The French Constitution was explicitly written with the American one in mind. The South African constitution was written with apartheid very much in view, hence safeguarding individuals from the prying eyes, hands and sterilisation programmes of the State. The main point for present purposes is that these written bills of rights that Straw sights were written in a tradition which is expressly opposed to his “Rights and Responsibilities” approach.

3. Straw is implying that Britain’s history has been smooth and peaceful, with our never needing any sort of constitutional safeguards or concept of rights. Perhaps he means to imply that not until the terrorist attacks of 7/7 did peaceful Britain need constitutional safeguards. This only serves to illustrate New Labour’s continuing ignorance of basic history. Britain experienced a violent and protracted series of Civil Wars from 1642 to sometime in the1650s (historians dispute when the Third Civil War ended or whether it was really a Civil War). As well as a king being beheaded, families and towns going to war against each other, and a republic being established for 11 years, there emerged groups such as the diggers and levellers. These proto-communists and socialists held radical political ideas…which in most cases were squashed under the heel of Oliver Cromwell, who was keen to safeguard the established class order.

As cited in the Hargrave peace above, a noteable leveller was Thomas Rainsborough, who gave us perhaps the classic statement of rights in the British liberal tradition, utterly antithetical to Straw et al:

“…for really I think that the poorest he that is in England hath a life to live, as the greatest he; and therefore truly, Sir, I think it’s clear, that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not bound in a strict sense to that government that he hath not had a voice to put himself under.”

Britain has had a turbulent socio-political history. Witness the Rye House Plot of the late 17th Century, which John Locke was involved with. Witness British liberal John Locke spending chunks of his life in Holland because the things he was writing (anonymously, mostly) made him a man marked by the Crown for death. Skipping to the 20th Century, from the late 1960s until the 1990s mainland Britain and especially Northern Ireland suffered repeated, brutal and sometimes highly devastating terrorist attacks by the IRA. To imply that Britain has been a blessed island of serenity, flukishly exempt from social upheaval and danger until New Labour came along, is farcical.

But then, New Labour have never been very good on history. Remember Tony Blair at the 1996 party conference speech declaring that the Party had “a thousand days to prepare for a thousand years“?

“We are, self-evidently, launching this Green Paper at a time of great uncertainty and anxiety. Tackling the global recession must be our immediate priority. But acting, at the same time, to strengthen communities’ and individuals’ sense of a stake in society— by better articulating the responsibilities we owe and the rights we have—is not an alternative to decisive measures on the economic front but an essential complement to them.”

At first this looks like a sop to the mandatory mention-the-recession requirement. Some news agencies have interpreted this as Straw shelving the Bill of Rights and Responsibilities because of economic constrains. I’m not so sure. I think this is New Labour double-speak to say “the recession is going to hit people hard, we can use the fact people are financially on their knees to impose things that would otherwise meet with increased social resistance.”

“One of the most significant constitutional changes in the past dozen years is the Human Rights Act 1998. I worked hard as sponsoring Minister to achieve a consensus behind it: and I commend the official Opposition for the support that they gave the Act in its final form.”

The same Human Rights Act that’s a villains’ charter, presumably?

“Prior to that Act, accessing convention rights via the Strasbourg court was a time-consuming, expensive and difficult process, and, as such, prohibitive for many. Now, those rights can be accessed in UK courts, with cases heard by UK judges.”

Indeed. And people like me welcome the adoption of a document which serves to safeguard citizens rights and doesn’t make them dependent upon the whim of the power-wielders. It’s worth remembering, of course, that under Human Rights law the European Court ruled that it was illegal for the UK Government and police to hold DNA records of innocent members of the public. Which throws a spanner into the works of Straw’s long-term pet project of compulsory I.D. cards. Which also makes one wonder to what extent the Bill of Rights and Responsibilities is meant as a way of sidelining EU legislation to facilitate the I.D. card agenda.

“The Act better protects the family. It has benefited all sections of society; from the elderly couple wanting to live in the same care home, to the loftiest of newspaper magnates. In providing a more practical mechanism to access rights, as well as a positive obligation on the state to protect them, countless thousands of people have benefited from the law, without necessarily having to resort to the law.”

But it’s still a villains’ charter, right?

“Despite that, the Act has its detractors…”

Really? Like who?

“…primarily because the atrocities of 11 September 2001 occurred less than a year after the Act came into force. Had those tragic events not occurred, I suggest that the HRA would have slipped comfortably into the fabric of our lives without controversy. As it was, those terrible events threw into acute relief the tensions between liberty and security. We recognise these tensions but the Government are proud of the Human Rights Act. We will neither resile from it, nor repeal it.”

I’ll ignore the counterfactual claim (if 9/11 hadn’t happened…) and concentrate on the “tensions between liberty and security”. In the British liberal tradition, that tension is faced down head-on. We accept that guaranteeing a free society means that some will exploit the freedom we guarantee to inflict harm. But we accept that as the price that must be paid for freedom. We do not believe freedom should be relinquished to the State under the guise of protecting us from the forces of darkness. We believe freedom is more important than that. “As for our common defense, we reject as false the choice between our safety and our ideals”, said a man with more in common with the British liberal tradition than Straw has ever had.

“The principles and rights set down in the European convention—now in the HRA—are timeless. They are the mark and measure of any civilised society at any time. But in the intervening 60 years since the convention was drawn up, the rights in it have been added to by a great extension of social and economic rights—of health care, dignity in old age, education, housing and social security. But as our rights have become so much wider and stronger, one question is whether their claim is balanced properly by an equally strong sense of the responsibilities we each owe. We believe that there is a case for drawing out more clearly and explicitly the responsibilities that go with rights.”

And here it is. Smuggled in to the speech under the guise of continuity with a long liberal tradition, Straw let’s spill that he thinks people shouldn’t have rights unless they have proved to the Government that they are “responsible” enough to be trusted with them.

Now let’s be clear. Followers of the British liberal tradition do not believe (necessarily) in individualistic atomism; that we should all go around caring only about ourselves and never helping or having regard for others. In most cases, anything but. The British Liberal tradition simply holds that these things are a separate category of political concerns alongside the provision of rights for citizens. Citizens have rights as pre-requirements of citizenship, and these rights impose responsibilities upon the Government (i.e. not to infringe the rights of citizens). There may be other social responsibilities, but these are not pre-requirements for having rights, as Straw would have it.

Straw thinks that we should only get rights when we have demonstrated to the State that we are responsible, on its terms.I find that a terrifying prospect, which hollows out the worth of even having rights. After all, what good are rights that are gifted by the very people you need them as protection from?

“Duties and responsibilities are to be found in the convention, in statute, in common law and woven deeply into our social and moral fabric. We have a latent understanding and acceptance of our duties to one another and to the state. That said, responsibilities have been a poor cousin to rights. The Green Paper proposes that responsibilities are given greater prominence in our constitutional arrangements, better to articulate what we owe, as much as what we expect. That is how we can move away from a “rights culture” to a “rights and responsibilities culture”.”

When Straw says that “responsibilities have been a poor cousin to rights”, he does not mean that the Government has been poor at upholding its responsibility not to trample on the rights of citizens. He means that citizens have been bad boys and girls and have not earned their rights – so from now on the State won’t be giving them out until boys and girls have proved they can be trusted to do what the State wants. If the Green Paper proposes that responsibilities are given greater prominence in our constitutional arrangements to better articulate what we owe – well what more can I say? That summarises what i’ve been trying to draw attention to. New Labour want you to have rights when they have decided when and if you can have them. Ask yourself: are those the kinds of rights people possess in a free society?

“Some responsibilities are obvious, such as obeying the law, paying taxes and undertaking jury service. Others are less obviously recalled at the moment they should be exercised, such as a responsibility towards future generations to live within environmental limits, the duty we have to protect the well-being of children in our care, a civic duty to vote, responsibilities towards our neighbours, respect for those public sector workers who care for us and a responsibility towards the taxpayer—for example, not claiming benefits if one is able to work.”

Here Straw conflates all sorts of “responsibilities” which don’t really belong in a discussion of rights. But he really does seems to be saying that if you fail in your responsibilities to vote, then you don’t qualify for rights. How delightfully, amazingly, unbelievably Kafka-esque.

Also, note the mandatory New Labour sop to the Daily Mail: “not claiming benefits if one is able to work”, etc.

“If we are to fulfil our responsibilities, we must have a clear understanding of what they are. As the Green Paper sets out, an accessible Bill of rights and responsibilities could be emblematic of the fair society in which we want to live, where awareness of our rights is matched with a greater understanding of our responsibilities to each other. Most of the social and economic rights to which I have referred are already embedded in law, but they are scattered across myriad legal texts. The Government believe that we should encapsulate those rights in a single document, bringing together the “new” post-war rights of social justice and the welfare state, victims’ rights, rights of equality and good administration.”

Wow. It’s worth reading that again. Straw is apparently proposing to lay out, in a single document, the things each of us must do in order to qualify for having rights, gifted from the State, under New Labour.

Blimey.

“A key question set out in the Green Paper is whether any Bill should have, directly or indirectly, the force of law. Bills of Rights from around the world are a combination of symbolism, aspiration and law across a spectrum of legal effect. There need not be a binary choice between the justiciable and the declaratory. As the Green Paper points out, the Government do not necessarily consider a model of directly legally enforceable rights or responsibilities to be the most appropriate.”

From what I can tell, this is simply Straw gesturing at the pretence that this Government listens to anyone about anything it hasn’t already decided upon.

“But even without full legal enforcement, words can have great power. The universal declaration of human rights contained no legally enforceable rights, but was rather the global expression of a shared commitment and a recognition of humanity’s common dignity—what Eleanor Roosevelt described as the Magna Carta for all mankind. A Bill of rights and responsibilities for the United Kingdom could be such a declaration and could set down the values we cherish.”

Straw’s audacity is staggering. His idea of Rights dependent upon Responsibilities is antithetical to the UN declaration of Human Rights. Which only heightens the audacity of claiming that his new bill is on a par with the UN declaration.

“I have had the rare privilege of taking through this House many of the constitutional changes of the past 12 years. Throughout that time I have looked to secure the broadest political consensus behind those changes, as reform of such importance to our democracy requires nothing less.”

This, from the Government which is widely accepted to have by-passed Parliament – and the will of the electorate-  more often and more egregiously than any in British history. The bare-faced audacity is simply astounding.

“Constitutional change should take place only on the basis of full and proper deliberation. The Green Paper has been through such a process within Government and now it is time to take the debate out to the people whom we all serve. The deliberation must not be rushed and so the Green Paper will not precede any legislation this side of a general election. We are dealing with the fundamental building blocks of our democracy, and as the Prime Minister made clear:

“Constitutional change will not be the work of just one Bill or one year or one Parliament”.—[ Official Report, 3 July 2007; Vol. 462, c. 815.]“

I’d laugh, except that I’m busy crying.

“A Bill of rights and responsibilities could form the next natural and necessary step in a process that began 60 years ago with the universal declaration. It is an opportunity to bring together existing rights and responsibilities in one statute and better to define the relationship between citizen and state in a new and unifying constitutional document for this century. I commend the statement to the House.”

Paul Sagar was unable to finish this post because he shot himself through the head rather than continue to partake in this cruel joke of an existence.

Further Reading:

Henry Porter

Chris Huhne

Francesca Klug

Of course, I don’t necessarily agree with everything I link to.

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