Rights versus liberty

Rights versus liberty

Hidden by the spirit of the Convention On Modern Liberty was a row about the Human Rights Act, which I want to bring out into the open

By Henry Porter

Hidden by the extraordinary spirit of the Convention On Modern Liberty was a row about the Human Rights Act (HRA), which I want to bring out into the open because I think the differences need to be sorted out. It was caused principally by remarks David Cameron made at my invitation in the run-up to the convention. This is what he said in full.

When academics look back on Labour's time in power, the erosion of our historic liberties will surely be one of its most defining, and damning, aspects. Things we have long thought were part of the fabric of liberty in this country – such as trial by jury, habeas corpus with strict limits on the time that people can be held without charge, the protection of parliament against intrusion by the executive – have been whittled away.

Already this month we've had Dame Stella Rimington's comments about Labour doing the terrorists' work for them, by frightening people into accepting a police state. And we've also had the House of Lords' Constitutional Committee warning that Labour's obsession with surveillance is threatening our freedoms.

This report from the Convention on Modern Liberty adds even more weight to the evidence of these erosions. It shows very clearly that the HRA has not protected us from these erosions, and may even have given them a veneer of respectability.

That's why a Conservative government would replace the act with a British Bill of Rights – to better tailor, but also strengthen, the protection of our core rights in keeping with the great tradition of freedom under law that has been nurtured in this country for centuries.

This has annoyed and worried many of the defenders of the HRA. If the former senior law lord, Lord Bingham, had been aware of the remarks he too might have one or two reservations about Conservative policy. This is what he said last week:

It seems clear that the last half century has seen an erosion of values once held dear. This is not the work of one party or one government, certainly not of the present government which in enacting the Human Rights Act coming into office took the single most powerful step in another direction, but overall, an erosion nonetheless.

Lord Bingham's speech was one of the best of the convention and although he gave credit to Labour for the HRA he was unremitting in his condemnation of the way they have governed:

Responsibility for protecting the liberty of the citizen must also rest on parliament and the House of Commons, traditionally regarded as the watchdog that will arrest any extension of ministerial power. But the watchdog has lacked ferocity of late, if, that is, a government with a reasonable majority can impose its will on its own members, regardless of its private reservations and thus on the House of Commons as a whole and so legislate without effective restraint, then that is a defect in our constitution. Compounded by an increased willingness to bypass the House of Lords, which calls for attention, the Commons should be a bastion and defender of our freedoms, not an accomplice on their unjustified erosion.

We cannot escape the fact that while the HRA has added greatly to justice it has failed as a constitutional device to protect the public from the government or help parliament act as watchdog.

It is a misunderstanding about these two roles that makes discussion of the HRA fraught: much of the time people seem to be talking at cross purposes, taking up defensive positions when they don't need to. Those who desire proper constitutional guarantees – like me – in no way want to harm the recourse that the HRA provides for those whose rights have been breached. I believe the opposite should be also true – that those who value what the HRA does very well at the present should also see that we need laws to protect us from the attack on liberty.

The trouble at the moment is the "rights" side attacks the "constitutional" side – or vice versa – and Jack Straw sails between us claiming that Labour has done more than any other to extend liberty and constrain government.

This being Britain, an entirely unnecessary dispute is laden with tribal symbolism. The rights side is characterised as representing the left while the constitutional side is deemed be full of Tory individualists. If we could only stop being so damned stupid and unite around a common cause we would be able to confront those in the Conservative party who desire to seriously harm the redress available under the HRA, at the same time as those in the Labour party who have done so much to attack liberty.

Liberty and rights, or rights and liberty: it doesn't matter which come first as long as we use them in the same sentence. That way we can move forward to claim the constitutional settlement that this country clearly needs. That way Straw and Jacqui Smith can be properly identified as people who care neither for rights nor liberty, but only for their own power.

If there is one thing that can come out of the Convention on Modern Liberty, after the various coded speeches and pointed asides, it is this union – which is why I do not favour one side or the other. I propose a third way that accepts merits in both arguments and focuses on the prize of a settlement.

Politicians do not want agreement to break out between us. They fear this unity because it would represent a powerful intellectual force that would bring its case to bear with considerable moral authority. We need to stop pitting rights against liberty and get on with the job of protecting our society against power-crazy and incompetent politicians who claim they do the business of the state.

n.b. I intend to comment upon this when I find the time.