Not Saussure

December 31, 2006

A Bill of Rights?

Filed under: civil liberties, Law, UK — notsaussure @ 5:09 pm

Via Longrider, I learn that

An unprecedented alliance, including the Conservative and Liberal Democrat parties, Charter 88, Justice, Liberty and a host of constitutional reform organisations, is to be formed to campaign for a new bill of rights, amid growing concerns that laws protecting personal liberty are out of date.

The purpose of the campaign, it becomes clear, isn’t so much to lobby for any particular bill of rights. Rather, it’s to focus attention on the way people’s rights are being eroded by government and to attempt, quite rightly, to make this a major election issue.

I’m not so sure, as it were. I completely agree with Longrider’s diagnosis that government is part of the problem rather than part of the solution, not because I’m a libertarian (I’m not) but because I hold to the view that we’re all of us happiest when left to get on with our lives as seems best to us and that government should only intervene when — as inevitably will happen — conflicts arise from us all of us pursuing our individual courses and we can’t amicably sort out our disputes between ourselves. Let people do as they wish unless there’s a compelling reason to stop them, say I. To my mind, the problem comes when governments try to be pro-active, and attempt to stop these conflicts from arising in the first place. Politicians say, ‘let us reduce the crime rate,’ attack each other for failing so to do and seek to gain election by promising their constituents that they’ll keep them safer in their beds at night than will the other lot.

Well, there are certainly sensible measures we can take that may well have the benign side-effect of discouraging people from committing crimes. Providing addicts with heroin on the NHS — one of my hobby-horses — would massively reduce the number of burglaries, street robberies and cases of serial shoplifting with which the courts have to deal. It wouldn’t solve the problem completely, of course; I’ve no idea how you deal with people addicted to crack or meth (I’m told that there’s no real maintenance dose for these drugs, as there is for opiates, and crack- and meth-heads who’ve satisfied their needs tend to get a tad more boisterous than do happy heroin addicts), but there’s a start. Better street lighting in some areas would certainly help, too; I’ve seen it argued (can’t recall where, offhand, but I will look it up if anyone asks me to) that much of the supposed deterrent effect of CCTV cameras is, in fact, because of the better lighting conditions which they need to operate. Encouraging people better to secure their property would also doubtless help.

So, too, would conducting a radical re-appraisal of the way the state treats young people who find themselves, for whatever reason, in its care; it cannot be right that

Most young people in local authority care are destined to end up in prison, homeless or working as prostitutes, a report by a think tank claims.

Of the 6,000 who leave care each year, 4,500 will have no qualifications and a fifth will be homeless, says the study by the Centre for Policy Studies.

Obviously these young people are frequently profoundly damaged by the experiences that have necessitated their going into care in the first place, but I have to say that, whenever I hear government ministers going on about parental responsibilities, I do rather wonder why they don’t put their own house, in which they’re in loco parentis, in order first.

However, if you set out to stop people from offending as an end in itself, you’re inevitably, it seems to me, going to find yourself treating everyone as suspects; let’s keep an eye on people and nip problems in the bud before they start, and let’s keep everyone’s DNA and fingerprints on file so we may at least eliminate them from our inquiries. That’ll doubtless help deter people from committing crimes in the first place and will lead to more convictions, but is it a road down which we want to go? Not Longrider, and certainly not I, but if you’re a government determined to do something about crime figures and public concern about crime, with a chorus of voices from the opposition and the press pointing out that whatever you’re doing isn’t working, then it’s a road down which you’ll find yourself very tempted to go. As Longrider says, many people

genuinely believe that government is legislating for their own good and that such legislation is benign. These people; that great majority; believe that if you have nothing to hide, you have nothing to fear. Yes, really.

I’m certainly prepared to believe the government’s intentions are pretty benign; it’s just that I can’t help but recall what they proverbially use to pave the road, if not to hell, to a distinctly dystopian future of more and more intrusive surveillance, which will inevitably become more intrusive and more punitive as the government’s attempts to abolish sin — for that’s what it amounts to — by better regulating our conduct, or forcing us the better to regulate it ourselves, repeatedly fail. The point of Bentham’s Panopticon, which, it should be recalled, is not just a prison but

a space not too large to be covered or commanded by buildings, a number of persons are meant to be kept under inspection. No matter how different, or even opposite the purpose: whether it be that of punishing the incorrigible, guarding the insane, reforming the vicious, confining the suspected, employing the idle, maintaining the helpless, curing the sick, instructing the willing in any branch of industry, or training the rising race in the path of education: in a word, whether it be applied to the purposes of perpetual prisons in the room of death, or prisons for confinement before trial, or penitentiary-houses, or houses of correction, or work-houses, or manufactories, or mad-houses, or hospitals, or schools, [The italics are Bentham’s; the colour emphasis, mine]

is that everyone should feel himself constantly under surveillance, whether he actually is or not at any given moment, since that awareness will cause him to regulate his conduct on his own; and, of course, if he has nothing to hide, he has nothing to fear.

Longrider says,

The product of our education system is a populace that believes government is the answer. They cannot comprehend the concept of government being the problem – or even part of the problem.

It’s not just the education system that’s to blame; the press certainly play their part in all this by constantly telling us at what dreadful risk we are and encouraging us to demand that something must be done. And we’re to blame, as well, for asking politicians to do something about it — you can hardly blame them for taking us at our word.

I suppose what I’m saying is that we live in a fallen world, where people will go about committing crimes. Dealing with this sad fact involves making trade-offs between our individual liberty and our security, and part of the process of government is a constant negotiation about how much of one we’re prepared to sacrifice to ensure the other. Certainly, to my mind and to that of the sponsors of this ‘alliance’, we’ve pushed, or allowed ourselves to be pushed, too far towards an illusory security, but it’s going to take an acceptance that part of the price of liberty and privacy is putting up with people abusing it. Personally, I’d rather, in general, it was criminals than the government who abuse our liberties and privacy, since they’re less pervasive and easier to deal with.

What, then, of this Bill of Rights? Other than to promote debate, I’m really not sure I see the point of it. The Observer’s report indicates, perhaps inadvertantly, the problem:

Human rights in the UK are enshrined in the Human Rights Act, the UK’s interpretation of the European Convention on Human Rights. But the Conservatives want Britain to have its own entrenched laws protecting the individual. They are concerned parts of the act have been exploited by criminals and illegal immigrants, resulting in an erosion of public confidence.

We’re signatories to the European Convention on Human Rights. This provides access to the European Court of Human Rights. All the Human Rights Act did was say that British courts should apply the Convention principles when interpreting domestic law, that ministers had to certify the compatibility of bills with the Convention and that courts could formally declare legislation incompatible with the convention.

It has nothing to do with one of the Conservatives’ (and the Home Secretary’s) main causes of concern, the various restrictions on the deportation of foreign nationals in certain circumstances — the cases of Soering v United Kingdom (1989) 11 EHRR 439 and Chahal v United Kingdom (1996) 23 EHRR 413, which are the precedents that cause Dr Reid so many problems, were, as the dates suggest, decided by the European Court of Human Rights well before the Human Rights Act. Since it’s a principle of British law that the government doesn’t intend to act contrary to its treaty obligations — which include abiding by the European Court of Human Rights’ judgments and the precedents they set — Mssrs Soering and Chahal will continue to haunt Dr Reid, or David Davis if and when he becomes Home Secretary, unless we withdraw from the Convention altogether.

What, then, is this Bill of Rights supposed to do? It can supplement our ECHR protections, which might be a good idea but wouldn’t do anything to address worries about their supposed exploitation by criminals and illegal immigrants (who are, of course, themselves human). Or it could reproduce, in whole or in part, the existing ECHR provisions, so that courts made exactly the same decisions but quoted the Bill of Rights instead whenever possible and the Human Rights Act when the Bill of Rights was lacking. Or, if we’ve repealed the Human Rights Act (which I suspect is the Conservatives’ preferred option) then people will just have to take their grievances to Strasbourg if they can’t obtain satisfaction in the domestic courts, which is what they did before the HRA was passed. The increased potential for litigation will doubtless be a bonus for Cherie Booth QC and her colleagues at Matrix Chambers, but I’m not sure that’s an altogether good thing.

Or, of course, we can withdraw from the Convention altogether. This has all sorts of difficulties attendant upon it, of course, but the main one in this context seems to be that the point of bringing in a Bill of Rights is to limit, rather extend, the rights we already enjoy, and to extend, rather than limit, the powers of government — which it’ll never, of course, abuse — which can’t be right.

In principle, then, a very muted welcome for this campaign. It’s welcome because it will focus attention on our rights and civil liberties, but any proposals will need very careful consideration if they’re not to achieve exactly the opposite of what they purport to do. I sincerely hope, by the way, that they receive careful consideration from people with a better eye for detail and a better background knowledge than one of their supporters appears to possess:

Peter Facey, director of Charter 88, the pressure group that campaigns for constitutional reform, said he believed the creation of a new bill was now a distinct possibility as a result of the alliance. ‘We have Magna Carta, which is great if you can read Old English or if you are a baron. But what we need is a document that sets out our fundamental values.’

I’m not a baron, but I can read Old English. I can also read Latin and, consequently, can tell the difference between the two languages. Mind you, even were I a baron I doubt I’d get very far trying to enforce clause 54,

No one shall be arrested or imprisoned on the appeal of a woman for the death of any person except her husband.


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6 Comments »

  1. …not because I’m a libertarian (I’m not) but because I hold to the view that we’re all of us happiest when left to get on with our lives as seems best to us and that government should only intervene when — as inevitably will happen — conflicts arise from us all of us pursuing our individual courses and we can’t amicably sort out our disputes between ourselves.

    Er, I think that makes you a libertarian… ;) That is all many libertarians want, after all. It’s certainly all I want.

    So I was being a little lazy; yes, I accept that the media has a part to play with the desire of many to demand action on the part of politicians. Your position isn’t so very far from mine – I’m just a little more jaded and cynical, I think.

    Comment by Longrider — December 31, 2006 @ 7:30 pm

  2. Does it? Golly! I tend to think of libertarians as sort of American Thatcherites on steroids, though I must confess that’s hardly a good description of you and that I always wondered why you called yourself one.

    I’ve no objection to governments doing things; it’s just that, on practical grounds, it’s usually best for all concerned that they don’t so I usually want a very convincing explanation of why they think that their intervention will help rather than hinder.

    Comment by notsaussure — December 31, 2006 @ 7:59 pm

  3. Yup, definitely a libertarian. As with any political ideology, there are degrees. At the one end there is anarchy. Somewhere short of that you have the likes of myself, Devil’s Kitchen, Mr Eugenidies and your good self. All we ask of government is that they apply themselves to those things we need to be done collectively and don’t poke around in our daily lives – oh, and respect the rule of law ;)

    Happy new year to you.

    Comment by Longrider — December 31, 2006 @ 10:29 pm

  4. Heavens! I am in distinguished company, it seems. Now I know how that chap in Molière must have felt when he discovered he’d been speaking prose all his life without realising it.

     Happy New Year to you, too.

    Comment by notsaussure — December 31, 2006 @ 10:43 pm

  5. […] I know I’ve discussed it before, but a brief exchange with notsaussure causes me to revisit just what I mean when I label myself a libertarian. Notsaussure states that he is not a libertarian but then goes on to describe himself thus: […]

    Pingback by Longrider » Further Thoughts on Libertariansim — January 1, 2007 @ 10:47 am

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