The assault on liberty
Dominic Raab has written a swashbuckling tirade against Labour’s illiberalism, but he overlooks the broader, cross-party disdain for freedom today.
This article is republished from the April 2009 issue of the spiked review of books. View the whole issue here.
In Dominic Raab’s swashbuckling tirade, The Assault on Liberty, May 1997 looms in retrospect as the moment a ‘perfect storm’ broke upon the British political landscape. Or, as he puts it: ‘A latent Marxist disdain for liberty, New Labour’s electoral strategy of triangulation, a fixation on the 24-hour news cycle, a policy of enthusiastic European integration and a large parliamentary majority combined to create conditions for an unprecedented assault on British liberty.’
As that final noun phrase indicates, for Raab, a chief of staff to Dominic Grieve, the UK’s Conservative shadow home secretary, it is not just any old notion of liberty under assault. It is British liberty, a tradition that stretches from the checks upon arbitrary royal power inscribed in the Magna Carta of 1215, to the twentieth-century definition of ‘negative freedom’ honed by honorary Brit Isaiah Berlin, taking in anything from the 1689 Bill of Rights to the classic liberal philosophy of John Stuart Mill on the way.
This tradition, argues Raab, contributed to the ‘development of a unique model of liberal democracy, a model in which freedom under law supports and reinforces a system of parliamentary democracy… [Our civil and political liberties] 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.’
Whatever one thinks of Raab’s unabashed nationalism, with liberty rarely seen without its Union straitjacket, his commitment to certain core liberties, the ‘crown jewels’, including free speech and a right to trial by jury, lends his critique of New Labour a principled force. For Raab, then, ‘British liberty’ is not only a historical development; it’s an ideal, and one that is imperilled in the New Labour era.
Indeed, as a demolition of New Labour’s lazy authoritarianism The Assault on Liberty is impressive. Raab tackles the myth that our security demands restrictions upon freedoms with factual aplomb. Take, for instance, the debates around increasing the number of days that a suspect can be detained without charge. Compared to France (six), Germany (two), and Russia (five), the current 28 days permitted in the UK is already clearly excessive. Yet still New Labour tried to raise it to 42 days, despite there being no evidence that such an increase was necessary. As the UK director of public prosecutions pointed out at the time, all counterterrorism investigations had been comfortably concluded within the 28-day limit. Raab’s point is sharp: ‘It is precisely those most likely to be innocent or least involved in a terrorist conspiracy who are most likely to be held for the longest periods of detention.’
Raab’s familiarity with the 42 days debate is understandable given his work at the time with David Davis, the Conservative Party shadow minister who resigned in protest against his party’s support for the extension. But Raab is alert to the erosion of liberty implicit in non-terror legislation, too, from the justice-bypassing 1998 Crime and Disorder Act to the government’s attempt in 2005 to remove the right to trial by jury in fraud cases on the basis that they were too complicated for ordinary jurors. Here, he even quotes the New Labourite Harriet Harman who was clearly suffering from good sense at the time: ‘Any offence serious enough to carry a sentence of imprisonment is serious enough to justify allowing the defendant to choose trial by jury. Someone who may lose his liberty as a result of being found guilty is entitled to choose to “put himself on his country”. And that means 12 of his fellows, not appointees of the Lord Chancellor.’
Raab is also aware of the deeper significance of New Labour legislation. Take the burgeoning DNA database. Established in 1995 under John Major’s Conservative administration, New Labour, upon being elected, made it possible to keep DNA from crime scenes even if the suspect was cleared of the crime committed. Alongside the Regulation of Investigatory Powers Act 2000, which permits monitoring of material and electronic communication, and the ubiquity of CCTV, the DNA database, botched though it is, embodies a ‘paradigm shift in the relationship between state and citizen’, says Raab. It ‘replac[es] the presumption that the state needs exceptional grounds to intrude into our private lives with an automatic presumption in favour of state access to a range of detailed personal information’. Later he writes: ‘The individual is now increasingly accountable to the state and privacy intrusions are becoming the norm.’
As thorough as Raab is in his criticism of New Labour’s erosion of fundamental rights, the most interesting section of The Assault on Liberty addresses the proliferation of petty rights. Or, to be more accurate, human rights. While many self-styled advocates of freedom and liberty cling to a notion of human rights, Raab is unflinching in his criticism. The 1998 Human Rights Act, subordinating UK law to the unelected judiciary at the European Court of Human Rights in Strasbourg, was less a blow struck for British liberty than against it, he argues.
Raab’s objections are not born of nationalism, however. Rather, by deferring to the ‘judicial creativity’ prominent at the European Court in Strasbourg, in which the vague principles of the Geneva Convention have lent themselves too easily to judicial interpretation, New Labour has overseen a vast expansion of rights-based claims. Raab’s examples are prime tabloid fodder. There are claimants that argue that their Right to Life means the police are responsible for its preservation, as in Osman v UK. There are even claimants who have successfully argued that the Right to a Private Life means that aspiring transsexuals ought to be allowed hormone treatment on the NHS. But Raab’s point isn’t just that the 1998 Human Rights Act has resulted in sets of absurd claims; it’s that it has inverted the relationship between the state and the individual at the heart of British liberty. In other words, far from demarcating a realm of individual freedom apart from the state, the Human Rights Act furthers people’s interests through the state. As Raab laments: ‘Where rights once stood as aspirations, they have now become providers. Human rights claims and campaigns are just as likely to press the government for some new category of social support as seek to limit the reach of its power.’
Under the human rights provision, freedom comes to be mediated by an ever-expanding state. Hence, as Raab notes, ‘any human interest, need, desire, claim or want can be formulated as a human right’. This is not liberty, it’s dependency upon the will of another.
Yet for all the libertarian zest and critical pith of Raab’s admittedly powerful book, it is hamstrung by his own right-wing, Conservative Party prejudices. Indeed, it is ironic that a Tory castigates New Labour for rampant illiberalism when, throughout the 1980s, the Conservative government enthusiastically reinforced the draconian 1974 Prevention of Terrorism Act, increasing detention without charge to 48 hours, proscribing membership of organisations deemed to be terrorist, and preventing the entry into Britain of unsavoury sorts. All of this against the background of the miners’ strike, a conflict that saw the police brutally crushing political resistance. Later, under John Major’s premiership, the 1994 Criminal Justice and Public Order Act diluted the right to silence, allowed the police to retain intimate body samples and increased stop-and-search powers, in addition to the ludicrous targeting of ravers, squatters and ‘travellers’. There are none so illiberal, it seems, than those whose interests are threatened.
Blinded by his Conservative Party sycophancy, where the recurrent phrase ‘since 1997’ functions as shorthand for the Fall of Liberty, his critique is only able to grasp the erosion of liberty in terms of the evil, subterranean ‘Marxist’ leanings of New Labour apparatchiks, foreign elements, no doubt, rotting British liberty from within. Noting the Communist/Trotskyite flirtation of New Labour stalwarts, from Peter Mandelson to Charles Clarke, Raab concludes that such individuals ‘were unlikely to provide an instinctive defence of British liberty, and more likely to join – if not drive – the imminent assault’.
Aside from the fact that New Labour is neither Marxist, nor Marxism antithetical to freedom, Raab’s critical framework is both hopelessly anachronistic and fantastically Manichean. For him, it is simply a battle between good free-market liberalism, the source of Britain’s historical greatness, and bad state socialism, the source of European ills. However, despite the clumsy invocations of totalitarianism in his introductory chapter, roping together the Gulag and the Khmer Rouge, Raab is smart enough to know his it’s-the-state-loving-socialists-wot-done-it schtick doesn’t quite make sense. The Orwellian fantasies are well wide of the mark. No, he says, the threat to liberty is ‘subtle, steady and surreptitious’, before admitting somewhat defeatedly, ‘it is elusive’.
There is a reason why the erosion of liberty appears elusive to Raab: it is because he is looking in the wrong place. The expanding state is not the reason for the assault upon liberty. And no matter how hard he tries, Gordon Brown et al are not Stalinists in New Labour clothing. No, the current form of the state merely presupposes the form taken by an increasingly atomised civil society. Where once it might have more openly embodied the interests of the ruling capitalist class, regulating the private property owners in their ‘bellum omnium contra omnes’, the war of all against all, now the state, faced by a civil society bereft of the collective, social agencies of old, has effectively been drawn into people’s lives. Maniacally dishing out rights and infernally obsessed with making people safe, the state’s current form simply reflects the social vacuum at the heart of civil society. It is not just invading people’s lives; in some cases it has been welcomed in.
By the same token, the struggle for freedom is born from the depths of social life. But Raab’s obsession with the New Labour state as the source of all illiberal evil makes him blind. Little wonder that aside from a perfunctory mention of the 1832 Reform Act, Raab pays scant attention to the struggles of the British working classes in the struggle for liberty. Raab’s vision is ultimately limited by his fundamental allegiance to a blue-tinged political elite. Hence his legalistic, aloof solution echoes the elitism of his analysis: a new Bill of Rights.
Tim Black is senior writer of spiked.
The Assault on Liberty: What Went Wrong With Rights, by Dominic Raab, is published by Fourth Estate. (Buy this book from Amazon(UK).)
This article is republished from the April 2009 issue of the spiked review of books. View the whole issue here.
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