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Conor Gearty and the “convention of cant”

Conor Gearty
Conor Gearty

Conor Gearty accuses the Convention on Modern Liberty of inflating concern about civil liberties into a moral panic. His attack is a useful opportunity to dispel some comforting illusions.

First consider his jibe: a police state or a “surveillance society” or whatever the latest colourful label is. The conflation is his; no one at the Convention claimed the present ‘surveillance society’ qualifies as a police state. But David Davis made the point very well: by the time a police state has emerged there are no easy paths back. Because our surveillance society has got us most of the way there, without serious debate, conventioneers think there is every reason to make a fuss.

Gearty offers three arguments not to: things are better than they were; we conventioneers select evidence that makes things look worse than they are; and we have got things out of proportion. These arguments converge on: Things Are Not That Bad. He accuses conventioneers of a covert reactionary agenda, “cloaking the advantages of the rich in the garb of personal autonomy”.

Well, some things are better than they were. Gearty is right to point to legislative achievements such as the Freedom of Information Act and the Human Rights Act. Whatever their flaws, these are substantial advances. But they are not substitutes for ancient liberties such as habeas corpus and Coke’s “the Englishman’s home is his castle”.

To speak of ancient liberties is not to conjure a lost golden age, as he accuses. If Gearty used to subscribe to this myth, as he says, he did well to rid himself of it. He would have heard nothing of it at the Convention. (And it would be a mistake to infer from his article that he actually attended.)

I do not wish to suggest Professor Gearty flirts with ‘Whig history’. So, though there is comfort to be taken from recent legislative achievements, we shall not assume we are advancing steadily on the best of all possible worlds.

But it does raise an interesting question. How could the conventioneers possibly have such worries under a government that shepherded the Human Rights Act into law? Surely the HRA proves there is no state conspiracy to enslave us? So how could there be crisis in the home of freedom?

The short answer is that law and the courts are but one part of the constitutional fabric that protects individuals from power. It has been strengthened in recent years. But the political support that guards liberty is absent without leave. The collapse of the trade unions late last century choked a centuries-long stream of dissent. The heirs of the Workers Education Association became mortgage holders in thrall to the house-price bubble; bribed, so to speak, with their children’s money. British workers once clothed and fed the rich; now the poor of China clothe us and furnish our overpriced houses.

New Labour fought its way into the sunlight by offering a gentler form of market liberalism. Early achievements such as the Data Protection Act were part of this promise. New Labour have since been self-proclaimed pragmatists, seeking only ‘what works’. We are now seeing the consequences of government without politics, of faith in the markets. A society more rigid, and less equal. The ruined international financial system in which we lately starred. Two million unemployed and counting.

We are now well beyond complacent talk of the ‘end of history’. The government’s chief scientific adviser warns of a ‘perfect storm’ of shortages of food, water and energy. We face unprecedented challenges: to rebuild an international financial and trade system, take a grip on the deteriorating climate, husband and share the world’s resources.

We are not on course to do that. Our course is set to guard property, secure our oil and gas privileges, and repel boarders. As that becomes more and more difficult we can expect our governments to take harsher action at home and abroad, amplifying the threats we face. We have every reason to expect the executive to demand more powers to protect us.

Executive power concentrates in many forms: land owner, industrialist, international corporation, trade union – and government. Fair words on liberty always come down in practice to obstructions placed deliberately in the way of executive power. As Gearty says, the rich seek to conflate their interests with the rights of the common man. But the common man needs those protections nonetheless.

Without political support no judicial system will protect him long. Mr Babar Ahmad will serve as a case in point. This Englishman is sought by an American court over material he published here on a website. You might suppose him protected by our right to free speech. Indeed, he faces no charge here. Yet, thanks to the Extradition Treaty 2003, proclaimed without parliamentary scrutiny in the interests of dealing more efficiently with alleged terrorists, no British court can protect him. The moral panic over terrorism prevails, despite stern warnings from judges, the ex-Director of Public Prosecutions and the ex-head of MI5. Mr Ahmad has been in prison since 2005, fighting his extradition. Mr Ahmad’s last defence is the European Court of Human Rights: successive British courts have found themselves powerless to release him.

The absence of political support for liberty shows up again in Mr Ahmad’s arrest. You might have thought this worrying matter warranted a little delicacy: I’m afraid you’re going to have to come along with us, sir. Not a bit of it. Policemen broke into his bedroom at 3am and beat him up in front of his wife.

It appears no one at the IPCC considered a “joint enterprise” charge.

He complained bitterly to the Independent Police Complaints Commission. It agreed the arresting officers had assaulted him, but breezily declined to pursue them. Unable to get his assailants disciplined or charged, Mr Ahmad found no help from British justice but to sue the police. Last week saw the collapse of their case in the High Court; they settled rapidly.

Judicial protection for liberty is vital but insufficient without a political culture that guards it. Mr Ahmad might still have been assaulted in a more vigilant society, but would have found early and vigorous remedy. The striking lack of opposition to his extradition is still a stain on our polity.

This government never set out to reduce freedom. Liberty has been collateral damage from a government and civil service that neither trusts nor respects us. See the report on government databases from the Joseph Rowntree Reform Trust, out this week. See also the UCL Students Human Rights Programme report on lost liberties. All this to general silence from the media and a Left that has forgotten its roots in restraining power.

There are signs of a growing disgust with the politics of fear. See, for example, the hoots that greeted Gordon Brown’s recent “We are about to take the war against terror to a new level”. There is a growing awareness of the need for radical changes in how the world is run. The first step is to break the drift towards authoritarianism, the second to revive big-issue politics. These may turn out to be the same step.

We have never had bigger issues to handle, never faced such upheavals. This is the ‘roller coaster’ Gore et al. have shown us we are now on, still at the start, climbing. We are set to ride it as the subjects of increasingly authoritarian and desperate governments. Or, just possibly, as citizens mending our world. That starts – as it always has – with reasserting our liberty.

Full disclosure: I was the London event manager for the Convention on Modern Liberty.

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