“It is fashionable among some sections of the left to dismiss civil liberties as bourgeois, liberal ideals – a notion which seriously misunderstands the struggles of the working class for political power and for curbs on the power of government. The right to habeas corpus, the right to trial by jury, freedom of the press from the more overt forms of censorship and real advances in the rights of women have been carved out through centuries of political struggle – and it would be folly to pretend that the struggle was over.”
Patricia Hewitt, The Abuse of Power, 1982
The Blair government, and in turn the Labour party, has often been characterised as bereft of liberals. The departure of figures such as Roy Jenkins and Shirley Williams to form the SDP in 1981 left Labour missing a significant faction who had driven forward civil liberties in government and in opposition. Yet this isn’t to say that Labour was left without liberals. John Smith did much to engage with civil libertarians, appointing Ursula Owen as Cultural Advisor to the Labour party (she went on to become CEO of Index on Censorship) and human rights expert Professor Francesca Klug advised then Shadow Home Secretary Tony Blair on introducing the Human Rights Act. Under John Smith the party published policy documents which viewed the Human Rights Act as a mechanism towards the Labour Party’s historic mission of championing the “oppressed and underprivileged against the power of the strong and powerful”. In turn, under Blair, two Cabinet members, Patricia Hewitt and Harriet Harman had previously been leading lights in the National Council for Civil Liberties (now known as Liberty) in the early 80s. Yet, by the end of the last Labour Government, the party had become profoundly hostile to liberal opinion. The 2010 election defeat, in which Labour slumped to under 30 per cent in the polls (with the Liberal Democrats up to 23 per cent), was in part due to the corrosive effect of this approach. The ‘liberal’ nature of the Liberal Democrats didn’t seem to inhibit their rising poll share. So why did the Labour Party become so toxic to liberals – and how should a revitalised party view human rights?
There was undoubtedly much that was very positive in Labour’s post-war history, but after the 1981 SDP split from Labour, it struggled to articulate a vision for human rights. A few years later, those behind the Charter88 manifesto for a Bill of Rights (including Ed Miliband’s father Ralph) were described by Neil Kinnock as “wankers, whiners and whingers”. Labour was wed to collectivism – and didn’t foresee the rise of individualism and distrust of authority that has made personal liberty so important today.
It was the groundwork of John Smith in his two years as Labour leader that persuaded our party that civil liberties mattered. Smith pushed for the adoption of a Bill of Rights, and an extension of civil liberties. In a lecture to Charter 88 in 1993 he said:
“I want to see a fundamental shift in balance of power between the citizen and the state – a shift away from an overpowering state to a citizens’ democracy where people have rights and powers and where they are served by accountable and responsible government”.
Rights and powers – not rights and responsibilities; Smith’s rhetoric borrowed from an ethos that saw rights as universal, not conditional to state as in Blair’s dictum. It was Smith’s commitment to civil liberties that saw the party vote for the adoption of the European Convention on Human Rights (drafted under the Atlee Government in 1950) into British law. In keeping with Smith’s work, prior to the 1997 election Jack Straw argued Labour would ‘bring rights home’, a deliberate and intelligent reminder to the British people that the European Convention was heavily drafted by British lawyers and civil servants.
The new Labour Government introduced a raft of measures that enhanced civil liberties; from embedding Strasbourg jurisprudence into UK law via the Human Rights Act (a progressive act hated to this day by the Tories), the Equalities Act, Robin Cook’s foreign policy of universal human rights and the repeal of Section 28. There can be no doubt that Labour brought in many of the most progressive acts of human rights legislation in the post-war period; but sadly also some of the most regressive.
Where did it all go wrong?
In short, Labour faced a historical problem and a historical event. Historically, for the Labour Party (both Old Labour and New Labour) the state was absolutely central to solving society’s problems. Concrete civil liberties enforced by an unelected and conservative judiciary, it was thought, would benefit those who already exercised power. As the Labour Party election manifesto of 1945 put it:
“There are certain so-called freedoms that Labour will not tolerate: freedom to exploit other people; freedom to pay poor wages and to push up prices for selfish profit; freedom to deprive the people of the means of living full, happy, healthy lives.”
Individual freedom was just another bourgeois masquerade. Equality, not liberty, was the priority for the party.
9/11 in turn, meant neither liberty nor equality were priorities, but security. The attacks on the World Trade Centre and Pentagon were the defining historical event of Labour’s term in office. It opened a war on two fronts, and pushed Labour into ever-more extreme positions in search of security. In Professor Klug’s view:
“By the time Labour was in power – and particularly after 9/11 – successive Home Secretaries began to sound like the direct descendants of the 17th century authoritarian, Thomas Hobbes, with their frankly robotic mantra that the first duty of the state was to provide for the safety and security of the citizen.”
Labour became the natural party of the securocrats. Our historic faith in the state meant we had little qualms in expanding its powers dramatically. And to expand the powers of the state became the litmus test of leadership.
Gordon Brown’s first miserable attempt to stamp his authority on the Parliamentary Labour Party was to attempt to bring in 42 days detention without charge for terrorism suspects – a time limit that Blair had failed to achieve. I was told by one former miner, now MP, that the Whips were ruthless – even signalling that a government defeat would mean the shelving of compensation payments to miners – for Brown this was a test of strength. In the eyes of the public it was little more than a ritual of self-flagellation.
The internal culture of the party changed after 9/11. Pluralism died. Just two years prior, the Liberal Democrat peer Anthony Lester QC advised the Government on the Human Rights Act, such cross-party work halted (with the notable exception of Lord Carlile of Berriew QC). One special adviser told me “you can’t be right-wing enough on justice”. The right to protest in Parliament Square was curtailed; asylum seekers including children were locked up, and ID cards with biometric data were introduced.
I spoke to Anthony Barnett, the first director of Charter 88, about Labour’s record on civil liberties, he told me:
“Labour was tragically wrong to have refused to move to a new democratic settlement that would have put its advances in terms of new parliaments and Mayors and codified human rights into a UK political context with a constitution we could call our own. Instead, the old centralising tradition of the Labour Party used the political weakness of the Human Rights Act to push through an oppressive and dangerous programme that started to lay the basis in terms of potential unregulated powers for a police state of toleration under surveillance.”
Renewal, rebirth
Placing liberty at the core of the Labour party is not just the right thing to do: but an electoral necessity.
Labour is now perceived as the big state party. Our reckless disregard for the personal sphere lost us 5 million votes between 1997 and 2010: we were the bossy party. From Daily Mail articles about local government bin snoopers, ID cards and the database state, to arguments over the extent of state spending; Labour is perceived as being on the side of the state against individual liberty. This is not an academic argument: Britain is simply not France. No amount of persuasion will wrestle us from an Anglo-Saxon view of the world that places individual rights above a statist mentality. One interesting example is our common law. Common law does not give rights, in the European tradition (this is what you can do); rather you can do anything you like – unless it is specifically prohibited.
To rebuild, we need to take the work started by John Smith and Charter 88 seriously. We need a British Bill of Rights that doesn’t just entrench the Human Rights Act, but goes much further in specific areas. There is a certain irony that the first country with a modern constitution (the Magna Carta – that quintessential document of liberty) is also one of the last to embrace a Bill of Rights. We have never had a serious debate about key human rights, including privacy. The importation of our privacy laws via Article 8 of the European Convention on Human Rights, and its associated Strasbourg judgments, brings us into line with the law of continental Europe. Yet, without building a consensus around what our privacy law should and should not do, it has attracted a significant amount of opprobrium from the press. Privacy is an un-British phenomenon. It protects the private spheres of the wealthy above the general public interest. Super-injunctions and now hyper-injunctions protect oligarchs and their interests. Protecting investigative reporting through a Bill of Rights would be popular, and also attract cross-party support.
Britain could also do with a strengthened first amendment defence of free expression. Too many separate laws restrict our ability to question authority; whether our archaic libel laws (www.libelreform.org), the Communications Act of 2003 (which makes it illegal to send “indecent, obscene or menacing” messages via text, Twitter, Facebook, etc), or Public Order offences which have been used to prosecute people over rude tee-shirts or swearing in public. All should be reviewed. Britain is a fundamentally free-spirited nation where the right to offend is taken seriously – reform in this area would prove popular.
We also need to conclude that our knee-jerk reaction towards civil liberties after 9/11 was wrong-headed. Even during the conflict in Northern Ireland, a civil war, successive governments refused to suspend Habeas Corpus to detain terrorism suspects for 90 days; this was during a period in which 3526 people were killed, 47,541 were injured, there were 36,923 instances of shooting, and 16,209 bombings or attempted bombings. We didn’t need ID cards, or an Act of Parliament making it illegal to ‘glorify’ terrorism, even with the martyr murals of the Shankhill and Falls Road.
The final front for civil liberties is on the internet. Over the coming years, governments will come under increasing pressure (mostly from corporations) to regulate the internet further. Censorship as it stands is being privatised: Facebook censors far more content than the most censorious town clerk fifty years ago. Labour could be the party that truly makes human rights universal – through a commitment to uphold human rights not just in this jurisdiction but in all. London’s High Court in recent years has become the forum for libel disputes; it could become the arena for the defence of human rights.
The last Labour Government presided over the strange death of liberal Labour; will our new leadership take on board concerns over excessive state authority, and detoxify Labour to liberals?
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Aritcle image by ‘dierken’
