The Assault on Liberty: What Went Wrong with Rights. Dominic Raab
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