The Assault on Liberty: What Went Wrong with Rights. Dominic Raab
the same time, and in parallel, the British tradition of liberty has been conflated as swathes of other comparatively minor grievances, claims and interests have been shoe-horned into the ever-elastic language of inalienable, unimpeachable and judicially enforceable rights. In place of our most basic – fundamental – freedoms, steadily eroded and undermined since 1997, we have witnessed the expansion of a range of novel, often trivial, rights.
Over the last thirty years successive governments have tried to grapple with, or plain ignored, the inflation of human rights by the European Court of Human Rights in Strasbourg. But since 1997 the government has fuelled the proliferation of rights by passing its flagship Human Rights Act, importing lock stock and barrel into British law the European Convention of Human Rights and all of its accompanying case law. The Act forms part of a broader government strategy that seeks to anchor Britain to Europe and introduce a socialist conception of human rights, fundamentally at odds with the British legacy of liberty going back hundreds of years.
The result has been to upgrade endless ordinary claims – including to social services, NHS treatment, welfare payments and even police protection – to the status of fundamental human rights.
Civil servants, the courts, police, prison officers and numerous other officials have struggled to keep up, distracted by the growing number of rights they are forced to service along with the wider public interest, and baffled by the legal confusion it has created. There is a real and rising risk that this exponential expansion of new, individual rights will drown out a balanced assessment of public service priorities, displace broader social interests, fuel a growing compensation culture and undermine this country’s traditional ethos of civic duty and social responsibility.
The dramatic expansion of rights in the UK is not the result of public debate, nor has it been endorsed by our democratically elected representatives. On the contrary, it has emerged by stealth, pioneered by judges in Strasbourg – and more recently the UK – at the expense of any meaningful British democratic control. Whatever the differing views on human rights – and those on the left and the right may reasonably disagree – the massive proliferation of rights through the courts is difficult to square with basic ideas about how a democracy should function.
If these twin developments have frayed the threads of our liberal democracy, they are not yet beyond repair. As a general election beckons, with all three political parties proposing constitutional reform – including proposals for a modern British Bill of Rights – this book aims to inform that debate, by drawing on our history, constitution and a consideration of the practical impact of human rights on our daily lives. To do that it is necessary to ask – in the mother of parliamentary democracies, which enshrined the first fundamental freedoms some eight hundred years ago – what went wrong with rights?
‘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