Читать книгу The Assault on Liberty: What Went Wrong with Rights - Dominic Raab - Страница 8

‘You mustn’t sell, delay, deny, A freeman’s right or liberty. It wakes the stubborn Englishry, We saw ’em roused at Runnymede!’

RUDYARD KIPLING,

‘What Say the Reeds at Runnymede?’

Where did our ‘rights’ come from? Winston Churchill described the Magna Carta of 1215 as ‘the foundation of principles and systems of government of which neither King John nor his nobles dreamed’. At Runnymede, near the royal home of Windsor, the seeds of British liberty were sown. Centuries before the Enlightenment gave birth to the French Revolution and American Declaration of Independence, and with a fraction of the bloodshed, English nobles persuaded their monarch to cede rights and freedoms that charted a course towards liberal democracy.

Magna Carta was preceded by war between England and France, as King John strove to recover lands lost to the French king, Philip Augustus (Philip II). In pursuing his revenge, John placed an increasingly intolerable strain on what was left of the barons’ good-will and financial resources, already tested by his abuse of feudal prerogatives. John depended on financial and political support from the barons to implement his foreign policy and military strategy. In a deft reversal of his isolation – and excommunication – by the Pope, Innocent III, John turned the tables on both the French and the barons by accepting papal authority over England. Magna Carta was the embodiment of a disingenuous truce, which bought off the barons, kept the French at bay and capitulated to the spiritual authority of Rome. As such, it proved a temporary rather than lasting settlement, and one John had no intention of keeping. His refusal to adhere to its terms led swiftly to domestic rebellion, French attack and his own death.

In reality, Magna Carta’s sixty-three clauses were more concerned with the immediate interests of the barons – feudal rights, tax and trade – than the rights of man. There was no mention of any broader representation beyond the ruling class, no enunciation of democratic principles and no lofty declaration of fundamental rights. Notwithstanding this triumph of pragmatism over principle, 1215 nevertheless marks the historical starting point for the modern debate on ‘rights’. It may not have been consumed by, or the product of, some deeper political emancipation, yet three of its nascent principles – the rule of law, habeas corpus and trial by one’s peers – still represent the earliest articulation of liberty capable of resonating with a modern audience.

Numerous articles throughout Magna Carta sought to subject John to some basic ground rules in the exercise of royal power. The text is littered with articles that restrict the arbitrary use of royal authority and restrain the levying of feudal dues. Article 17 requires courts to be held in fixed location and article 40 expounds that: ‘To none will we sell, to none deny or delay, right or justice.’ This codified the most basic idea of the rule of law – requiring the authority of state to be exercised in a clear, transparent and consistent way, not at the arbitrary whim of those with power. The pervasive value of ‘legal certainty’ is easily overlooked today, as we take it for granted that the law of the land will be applied impartially and consistently through independent courts. But it provides the foundation for all the other freedoms. Predictable rules are essential not just for individuals, but also companies and even government to plan their business and lives around. So, when the government introduced indefinite detention without trial for foreign terrorist suspects after 9/11, the legislation was heavily criticized by the House of Lords, Lord Nicholls stating that ‘indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law’.

Likewise, Article 39 of Magna Carta set out one of the earliest constitutional expressions of habeas corpus and trial by jury. The right of habeas corpus – translated literally as ‘you may have the body’ – is the individual’s right to know and challenge the legal basis of his detention by the state. Today, the principle reflects a basic level of due process we expect from the police, in return for their power to interfere with our freedom. If stopped by a police officer, we expect to be told the grounds for our being stopped, let alone any search, arrest or detention. In the overwhelming majority of criminal investigations, the police cannot hold a suspect in detention for more than four days without bringing criminal charges – at that point they must justify the deprivation of the liberty of the citizen. We assume these rights as part and parcel of living in Britain. In other countries – China, Egypt or Syria, for example – dissidents and government critics live in constant fear of being arrested and arbitrarily detained, with minimal checks on the use and abuse of police powers.

Article 39 also bans serious punishment ‘save by the lawful judgment of his peers or by the law of the land’, while Article 38 prevents royal officials prosecuting an individual ‘without producing faithful witnesses in evidence’. These guarantees formed an early basis for the common law model of a fair trial – including the presumption of innocence and the right to elect trial by jury when faced with a serious punishment. If the state wishes to imprison or otherwise punish an individual – depriving him of his liberty – it must prove the criminal case against him beyond reasonable doubt. It is for the state to demonstrate guilt, not for the individual to prove his innocence. Whether the accusation is illegal parking or a bank robbery, a court will throw out on the first day of trial a case brought without the evidence to back it up.

Likewise, the right to trial by jury remains relevant today. In criminal cases, the right to elect a jury – twelve members of the public rather than a single judge – provides a check against both over-zealous prosecutors and the kind of bad law that even a functioning democracy may pass from time to time. People prosecuted for offences that they believe to be harsh, unjust or just trivial – such as dropping an apple core on the street, or selling groceries in ounces and pounds rather than kilograms – still rely on trial by jury today to challenge unfair law enforcement, putting their faith in the common sense of twelve members of the public. These are fundamental safeguards built into our common law system – and manifestly absent from continental European principles of law and justice.

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.

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.