Below is a transcript of the Conservatives and civil liberties session
Iain Dale: Good morning ladies and gentlemen. In the style of Alcoholics Anonymous let me start off by saying that my name is Iain Dale and I am a conservative. At least I thought I was, but being a conservative can mean different things to different people. I used to believe in the death penalty, I used to believe that ID cards were a bloody good idea, I used to think if you had nothing to hide you had nothing to fear, I used to think that the proliferation of CCTV cameras was a very good thing, and I used to trust the State to protect us by whatever means from terrorism. I thought it was right to ban Gerry Adams from our airwaves. In short, I guess I was your classic authoritarian Tory.
Keith Joseph said in 1975 that it was only in 1974 that he was converted to conservativism. He said “I thought I was a conservative, but I now see I wasn’t really one at all”. He was talking about economics, but I guess I could say the same about freedom. It’s taken ten years of the most authoritarian government in living memory to show me what protecting rights and freedoms actually means. As Ronald Reagan said, “the scariest words in the English language are: I’m from the government and I’m here to help”. I suspect I’ll be the only person quoting Ronald Reagan in the course of the day.
The fact that this Convention is taking place at all is testament to the fact that hundreds of thousands, maybe millions of people are more concerned about losing some of their fundamental freedoms than at any other time in our recent political history. Some of us thought things would improve with the departure of Tony Blair, but I have to say, if anything, things have got worse. So if David Cameron were to become Prime Minister, what would change? Just how committed is he to the very concept of civil liberties? How much sway do the likes of Michael Gove and George Osborne have compared with civil libertarians like Dominic Grieve? Now that David Davis has despatched himself into the outer wilderness, what are we to expect of his replacement Chris Grayling, whose first pronouncements in the job have hardly cast him as a friend of civil liberties?
Now, In this session, I hope that our speakers are going to address that important point and to ask why civil liberties, which used to be the preserve of the left, have been adopted by many on the right. What would a civil liberties agenda mean for minorities, in a Tory government, and how might a Tory administration react to a terrorist attack? Would it abandon the civil liberties agenda and retreat into its normal authoritarian bunker, or stick to the principles which have guided its approach over the last two years? And finally, what effect will the recession have on the Tories’ commitment to individual freedom and prosperity?
To discuss this, we’ve got five eminent conservatives, politicians and commentators: Laura Sandys, to my right, who put this panel together, who’s a leading light in Ken Clarke’s Democracy Taskforce and standing in the marginal seat of Thanet South where she’ll be ousting the Labour MP Steven Ladyman.
Tim Montgomerie on my left – it’s not often I can say that (laughter) – is the editor of Conservative Home, one of the most influential political websites in the country. He’s adamant he never wants to be a politician, and I think Tim won’t mind me saying he’s a civil liberties sceptic.
Philip Blond has hit the headlines recently with his advocacy of “Red Toryism” which proposed a radical communitarian conservatism that inveighed against both state and market monopolies. David Cameron has said he quite liked his ideas.
Edward Garnier, who still isn’t here, is Shadow Justice Minister, and the MP for Harborough. He’s a QC and also now a judge. He’s been in the Home Affairs and Justice team for the Conservatives since the 2005 election.
Dominic Raab, to my left, is a former Foreign Office official who was Chief of Staff to David Davis, and is now Chief of Staff to Dominic Grieve, and has just published an excellent book, which I can highly recommend, called the Assault on Liberty.
Each of the speakers will speak for a maximum of 5 minutes and then we’ll open it up to a wider discussion. Just before we do that though, Dominic said just before he came up, “Isn’t it interesting that the Conservative Party is the only party to be given a panel like this, and I did think isn’t it really the Labour Party that should be having a panel on the lessons of civil liberties”. But I digress. I’m going to ask Philip to kick off.
Philip Blond: If I may, what I’d like to do, is I want to suggest a distinctly conservative contribution to the debate. But before I do, I want to make it very clear that when we have individuals versus the state, I always favour the rights of individuals over those of the state.
Let’s be clear, there’s something wrong with our language of rights, there’s something wrong with our present political settlement. More or less, it is distilled down to an authoritarian, absolutist, bureaucratic, and dysfunctional state versus a series of isolated individuals. Individuals who claim rights against the state, but rarely associated with each other to articulate an alternative social settlement. As a result, individuals always lose.
The history of the liberal legacy of the state which produces an authoritarian state and atomised individuals is that the rights of individuals were always overridden, always derogated, abrogated or even dispensed with. There’s something insufficient about a purely liberal language about rights and there’s something that always loses. Now what I want to suggest is a distinctive conservative contribution to this debate which tries to dissolve this opposition.
For conservatives, you are always born a free individual in free association with others. You’re born into families, you’re born into a human community. There’s never a point at which you’re an isolated individual, separate from culture, society, tradition, time, culture, whatever you may say. So conservatives have never believed in the isolated, abstracted individual of liberal contractualist political theory. Liberal contractualist political theory, by way of contrast, always says the original state of entry is horrible, it’s horrific, people are isolated, alone, and at war with one another. Therefore, you need a state to manage their conflict.
Conservatives have never been like that. Conservatives are the society of the civic society of you and I and each other. As such, conservatives have a huge amount to contribute to the present debate, because they can dissolve this false and disempowering opposition. Conservatives can talk about free association, an association around common goals, around the nature of locality, and around civic institutions. As such, I want to argue that conservatism – liberty doesn’t come from liberalism. I want to argue that in fact its true origin rests with this conservative discernment. Let’s be very clear, habeas corpus happened before any liberal settlements.
You can think rights through a plurality of a diverse and civic associational society. Paradoxically this does two things. It dissolves the liberal idea of isolated individuals competing and warring with one another, that then subsequently need an absolutist state to police them. If we think first of all that primary conservative intuition, the Burkeian intuition that we are first born into little platoons, then you’re not in the language of absolutist states versus individual rights. This, I believe, is a distinctly conservative contribution to the debate, and we’ve got to, in some sense, introduce notions of a plurality of groups rather than plurality of individuals.
Tim Montgomerie: Thanks very much Iain. Well, Iain began by believing things that he believed ten years ago and doesn’t believe anymore, I’m afraid I still largely believe them if I put my cards on the table. So please let me leave quietly at the end. I’ll begin by just saying where I think opinion in the Conservative Party is.
I wrote a blog defending 42 days on the morning of the vote, and I got probably one of the most negative thread responses I’ve ever had on ConservativeHome. And that is where I think the Conservative Party largely now is on the issue. They did not support 42 days and I actually then polled Conservative Party members, which we regularly do, in a balanced, representative sample of Conservative members, and only 4.5% of Conservative members actually supported lengthening the period of pre-charge detention.
That, I suppose, is the good news for civil libertarians. The less encouraging news from a civil libertarian perspective is that 47% supported keeping things at 28 days. And so if you add up the number of 42 and 28 days, you actually get a very small majority basically in favour of the status quo or slightly more restrictive options. Conservative Party members are also divided on an issue like CCTV. Half think it’s gone far enough, half still think there are huge benefits in having it.
Iain, equally, in his introduction, hinted at some divisions within the top echelons of the Conservative Party, for those more interested in what the legislators think rather than what the grass roots might think. There are a number of very prominent individuals in the Shadow Cabinet; Iain mentioned two of them, there are others, who do not fully share David Davis’ view on these issues. And that is what I think has produced what is essentially the Conservative position on these issues, and that is a pragmatic position. David Cameron was very careful in the 42 days debate to make it clear that the Conservative Party did not have a closed mind to a possible extension of the detention period. He said that the police and other authorities, other sources of advice, have not made the case and therefore the Conservatives did not support a more restrictive position.
And that, I think, is generally where the Conservative Party is. It is pragmatic. There is, I think, in David Cameron, and I think the statement that he has issued to this Convention points to that, an instinct to take the more libertarian position. But I also, because of the coalition that he leads, there is pragmatism there. I think at the moment we do not feel hugely threatened by terror and by the other forces that could force that pragmatic position to become harder-line. I think if we did see a deterioration in the security system, there would be voices within the Conservative Party, including my own, that would make the case for harder-line positions.
I think it’s notable, also, that Conservatives are of course in opposition at the moment, just as the Democrats in America were until very recently. I think it’s significant that since Barack Obama’s become President, he has actually decided to retain a number of the Patriot Act measures that most Democrats vowed to repeal when they were in opposition. I think there’s a tendency when you’re in Government, when perhaps you see the benefits of intelligence and other forms of surveillance to be more inclined to keep them than in opposition.
My overall view, in conclusion, is that I do not feel we do not live in a free country. I think a Convention like this is a good thing, because we always need to be incredibly vigilant. But we have an extraordinarily free press, there is hardly a newspaper title in the country that isn’t very concerned about and where the drift of civil liberties is going, The Sun being the obvious exception. I think we have an independent judiciary, I think within the British people there is a deeply-held suspicion of the state and state power, and that there have been advances in recent years, including Freedom of Information provisions. So I think yes, always be vigilant, but I think Britain is nowhere near anything like the police state that some people suggest and I think actually it’s incredibly offensive to people who do live in police states when we use that kind of language. I think we will have a pragmatic Conservative government that will always be inclined to take a libertarian position when it can. I think David Davis is an incredible powerful force within the Conservative Party now who will argue for more libertarian positions, but it will be a pragmatic position and the Conservative Party will not ignore public opinion insofar as it becomes worried about threats.
Iain Dale: Laura, I wanted to ask you a question which I hope you may have included in your talk. When you were out on the streets of Thanet South, how often to people raise these issues with you just off their own back?
Laura Sandys: I think what they raise is a different issue but it is part of, for me it’s a very important part of, conservatism and the issue of the state. They feel interfered with. They feel that their lives are being closed down… In a strange way, what Conservatives might not have understood the terminology of civil liberties. I mean, I was brought up with quite a strong tradition of civil liberties in my household but it’s not a term that runs naturally for conservatives. If you turn it round and talk about freedom, then we have a very different concept. The word “liberty”, from a conservative perspective, is something that is seen as bestowed by the state on the individual. I believe conservatives, and many others, feel that we are born with freedoms, and it’s from that position that I look at the whole civil liberty issue.
When you talk about – there are really two aspects to my commitment on the civil liberties issue. Firstly, was really picked up by Dominic Grieve today, and that is that Governments and States – and I don’t like the word State at all, and I don’t really like the word Government either – they used to be called something rather benign which is an administration. And that in a sort of way is a much better term for what politicians and central structures should be doing. I think that people – British people don’t really like being governed, never mind being under the hand of the state. So I think terminology has really changed the way the State works. But Governments, fundamentally, are flesh-eating diseases. They need power. They consume it wherever they see it, any weakness, they feel, they consume it. Under all colours of Government.
What I think has happened over the last ten years is that we’ve had a Government that is really lacking in confidence; it hasn’t been able to say “stop” to the State. Because the politicians are not really part of the State, their position is to lead Government. We’ve had, and I put my hands up, a reasonably weak opposition on many of these issues. And a bit like the frogs, we haven’t seen it emerge.
And the third thing is, we haven’t really had a galvanised public. So when you really come back down to the galvanised public, the public of South Thanet, the most important people in this country, they feel, as I say, that their lives are being closed down. Their ability to take action is being closed down.
And we as politicians are constantly going round and telling everyone: create a community. Why don’t you go out and make your neighbourhood greener, or set up a crèche, or organise a youth club? Do you know how difficult that is these days? Do you know how I can’t – if I’m walking down the street, I can’t pick up a child and hug it if it’s fallen down and hurt itself. I can’t touch a young person. I am restricted on every single level, to show the basic level of humanity, which is compassion, which is a physical touch, which is a sense of community.
So we can look at the very large civil liberty issues, but let’s also look at where this Government has actually intruded in my ability to be a human being. And I am being closed down. A very important youth club has just closed down in my area because one of the youth workers pulled two boys apart when they were fighting and then ended up being taken down to the police station. All the volunteers walked away. We’ve got situations where I saw a woman smacking a child – which is illegal, as we know, some people would say it shouldn’t be – but smacking a child in Tesco’s and all I could do was address her and I had no ability to actually pull this child away. I mean, three or four of us eventually did. But I feel incapacitated as a citizen, a subject, a human being. And I think we also need to look at where our liberties, on a daily basis, are being impacted, and yes the people of South Thanet know that they are being closed down, and they want a different, a change in attitude and a change in the level of respect that a Government shows them as individuals.
Dominic Raab: Well it was Churchill who said that if you’re not a liberal at 20, you’ve no heart, and if you’re not a conservative by 40, you’ve no head. I’m rather attached by both so what I’d like to do is make the liberal conservative case for human rights. And I think that draws on a strong tradition that we have here, the legacy of great thinkers like Burke, Locke, Mill’s harm to others principle. And I would add Isaiah Berlin, both because of his strong emphasis on the freedom that shields us from abuse of power by the state, but also his acknowledgement that liberty is not the most important, not necessarily the only thing, in life. Zealous campaigners might just from time to time reflect on his plea for moderation, and I’m quoting, “everything is what it is. Liberty is liberty, not equality or fairness or justice, or culture or human happiness”. Quite. That’s fine as far as first principles go, but what practically would this involve? In my view we have to navigate the path between two principle hazards. The first is, avoid throwing the baby out with the bathwater. I think what we see time and time again from Ministers is, when they make a call for greater powers, it’s often said that it’s based on “unprecedented” threats – 90 days, 42 days, ID cards, and now again with the giant new communications database, and of course we do face new challenges. But it’s no reason to suspend all critical judgement, throw the baby out with the bathwater and junk the basic freedoms that we’ve nurtured and defended for centuries, without properly scrutinising the case. And it’s that part of it that’s been so wrong with what’s happened over the last decade. So it might not sound particularly earth-shattering but one practical way to avoid the “baby bathwater” syndrome, if I can call it that, is to provoke and prolong debate. 42 days is a classic example of a policy that crumbled in Parliament and in the polls the longer the debate went on. In fact it keeps on crumbling. People haven’t needed to hold someone for longer than 14 days, let along 28, in over a year and a half.
The second hazard, I think, is a slightly more subtle one, which is the risk of stretching the credibility of the basic idea behind what human rights stands for to breaking point. I support the European Convention, I wouldn’t support withdrawal, it’s a sensible list of core freedoms. But there’s undoubtedly been massive judicial legislation from Strasbourg, especially since the Golder case, for example, in the 70s. One consequence has been to increase what the Court calls the “positive” obligations on the state, rather than just shielding the individual from abuses of power. And that’s inflated rather than checked the role of the state. I think the Human Rights Act has certainly exacerbated that, and on top of this we’re now hearing the government talking about economic and social rights. For those who see in expanded definitions of freedom and human rights a redemption of the state, beware the warning first attributed to Thomas Jefferson: “Government big enough to supply everything you need is big enough to take everything you have”.
This phenomenon of ever-expanding rights has long been criticised on the centre-right for undermining democratic checks, for undermining social responsibility, for fuelling the compensation culture. But there are flickers of concern on the left now as well, with one human rights lawyer who’s speaking here today slamming the Human Rights Act as a “villain’s charter”, writing in The Guardian, of all places, because it was arming the hedge funds in their claim for compensation after the nationalisation of Northern Rock, and again, BAA’s attempt to trump the ruling that found it in abuse of its market position as an airport operator. It’s perhaps only a matter of time before we see the bankers brandishing the Act to claim a human right to bonuses.
But on the whole, those flickers aside, the left still retains its crusading zeal, relishing the conquest of new territory, a sort of human rights imperialism. Whether it’s Mary Robinson arguing for human rights to tackle global warming, or Francesca Klug’s building up approach.
What do the public think about all this? Well, good news from a 2008 Ministry of Justice survey is that there is broad support for human rights at least in a positive way, when it’s identified with core fundamental freedoms. I’ve got to say that the bad news is that they’re pretty sceptical about the Human Rights Act and human rights that, in the words of the survey, “burden public service providers and encourage unscrupulous individuals to seek unjustified compensation”. It’s very easy to blame all of this on tabloid hysteria, but the truth is that the rapid inflation of rights beyond core freedoms risks devaluing the currency and the credibility of all human rights at a time when British liberty has never been more important, and never been more under threat.
So those are the two hazards that I think we need to chart a course around. I do believe we need a Bill of Rights, both to protect our fundamental freedoms, but also to define them with greater clarity and avoid the temptation to keep over-selling human rights as all things to all people.
Edward Garnier: Thank you. I’m sorry I was late and I’m sorry I missed, Laura, the beginning of your remarks. I’m Edward Garnier, a Conservative Member of Parliament. I wonder if I could begin by confessing that I shall, during the course of the next few minutes, taking a deeply unintellectual approach to what I have to say. But I do think that one of the things that comes out of what Laura said a moment ago – one of the things that comes with being a Member of Parliament is that if you are forced, whether you like it or not, to talk to people and to hear their views. Sometimes it is the view of the man in the saloon bar, who tells you that if you have nothing to hide you have nothing to fear, sometimes it’s the views of others who realise that even if you have nothing to hide, you have plenty to fear. And I am afraid that I am persuaded by that second category of persons, not because I don’t like going into saloon bars, but I happen to agree with the way in which that describes the proper relationship between the citizen, the subject, whoever it is, the individual and the state.
Dominic mentioned the great American President Jefferson. One of his fellow compatriots but of a different century said this – Justice Louis Brenders – “free men are naturally alert to the wires of evil-minded rulers but the greatest dangers to liberty lurk in insidious encroachments by men of zeal, well-meaning but without understanding”.
I see this day in, day out, in the House of Commons. I would never accuse any of the members of the Government, be they in the Ministry of Justice, or in the Home Office, or in Number 10, or wherever you like, of being evil people. They are not ill-motivated. They are indeed, I suspected, motivated by a desire to help and to protect, us against all sorts of perceived and actual evils: terrorism, international organised crime, illegal immigration, bogus asylum seekers, welfare cheats, whoever you like. They’re there to help us, and I suppose one ought to give them at least the benefit of being well motivated. But what worries me is that they do not sufficiently understand what it is they are doing and what are the consequences of what they are doing, and they do not sufficiently engage their supporters, either in Parliament, or without, in the reality of what they are doing.
Mr Morrison, I think I get your name right, told us this morning about a comparison between being a citizen who could travel, and a Soviet subject who could not. I led in committee in 2005-6 for my party on the Identity Cards Bill, which is just the sort of regime which you, Sir, warned us about. The problem that we faced in that committee when dealing with that Bill is that the concerns that I express, and the concerns that I did express were very similar to some of the concerns that were expressed in the main hall this morning, were not taken seriously. “You are exaggerating”, it was said. “You are simply making these points in order to undermine the Government’s policy which is to introduce an Identity Cards system”. Of course if you go to my friend in the saloon bar and tell him about the Identity Cards Bill, he’d say “well look, I’ve got hundreds of ways of my identity being verified, what is the problem?”. But of course, the poverty of the imagination of the back bencher and of the saloon bar man who doesn’t understand the implications of the policy is what I have concerns about. We all have in our pockets, I dare say, methods of identifying ourselves, but I dare say none of us has in our pocket an electric key which allows the Government to access information which is private to us, and then can trade it among other Government agencies, but also according to the Government Business Case published in 2005/6, to 40,000 independent, private operators. We need to be careful and I think we need to beware that it is not just the state, it is those who do things on behalf of the state. And increasingly, private organisations and increasingly non-state organisations are carrying out the state’s functions for it. And so I think we need to look at the function rather than the identity of the operator. Therefore when you look at the National Identity Register and the Identity Cards system, just see who is doing what, and bear in mind also that you as an individual will have no right to audit the trail of information movement.
Secondly, if I could just come back to this week. The Coroner’s and Justice Bill, well again it’s my delightful pleasure to be leading for the Conservative Party in that committee. There are two big issues – well, there are a number of big issues in this Bill – but the two that have hit the headlines so far are the issue of secret inquests under Clause 11 and the issue of data sharing under Clause 152, which was mentioned this morning. When it comes to secret inquests, there is a perfectly common-sense and rational argument for, on occasion, withholding information from the public. We clearly do not want our secret service agents to be identified and placed in danger, and if their names or their whereabouts or whatever were made public during the course of an inquest, that could lead to all sorts of adverse consequences for them. But there is a common-sense way, it seems to me, of withholding certain information but allowing the widest possible access to an inquest. In the criminal system, if you go to the Old Bailey and you take part in an espionage trial, of course matters of secrecy are kept out of the public domain. But the trial, substantially, is held in public. It is dealt with by a jury. And while it is not wholly satisfactory, it is the least unsatisfactory way of dealing with it.
When it comes to inquests, what are you dealing with? You’re dealing with the emotions of the family of the deceased. You’re dealing with a fundamental right under Article 2, when those who are disposed of by the state, that the state should set up an interventive system of enquiry. Under Clause 11, the Government is reluctant to admit that, even though under the De Menezes inquest, the coroner Sir Michael Wright was able to deal with PII applications, he was able to deal with witness protection, he was able to anonymise the names of the police officers, and he was able to receive certain material which did not damage the lives or well being of people who felt under some risk. Not an entirely satisfactory setup; the De Menezes family felt deeply upset, by the death of course, but also by the inquest, and thirdly by the result of the inquest. But I think as members of the public, we felt that something better than a total secret inquest had taken place. So it does mean the Government is designing a system – and they are designing a system based on two cases – there are two police shootings that have taken place in London since about 2005 and the Government said it was because of these two police shootings, which involve all sorts of terribly secret things, we need this Clause 11 secret inquest system.
Frankly that is untrue. First of all, the coroner in one of those inquests has now agreed to proceed, so that’s half their case down the pan, and in the second case I suggest there are all sorts of ways that the De Menezes coroner’s inquest system could be used to permit a proper inquest to be held. My hunch is, and it may only be a hunch, but I think it’s a reasonable hunch, is that we are looking at Clause 11 at a situation similar to the Binyam Mohamed American pressure. Blue on blue, friendly fire, military inquests which involve the killing of our own soldiers, accidentally or not, it doesn’t matter, but the killing of our own soldiers by our allies leads to all sorts of international sensitivities. And I have a suspicion, and I can put it no higher than this, but I have a suspicion that clause 11 has been as much drafted by the Pentagon and the State Department as it has by the Ministry of Justice.
Let me move on briefly to clause 152 – well why don’t I come back to clause 152 in questions – but essentially I hope what you’ve got from me in the last five – sorry, nine minutes, it should have been five minutes – is an understanding of where I as the Shadow Minister for Justice, when dealing with this type of legislation, come from. And we can perhaps discuss later where I want to get to.
(in media res) …Cameras inside pubs are taking away one of the few places that a lot of people still feel should be private space. But I think there was a larger issue raised by one of the questioners in the main session which is what are the Conservatives going to do about it if they are elected. Dominic gave a very forceful statement about repealing ID cards: I still don’t get the impression that the Conservatives are leading the Charge as they should be and it may be, as Tim said, that they’re very conflicted. But I think that if we are going to have a powerful state who will support us? There has to be more open expression.
A: Well, it’s an interesting point isn’t it – particularly on the CCTV Edward. You have Hazel Blears telling us constantly that her constituents want nothing more than thousands more CCTV cameras. And yet, David Davies on the other hand says that the ones we have got don’t work so what’s the point of them anyway? What are the Conservatives going to do on that particular issue?
Panel: The criticism that you make of us is a fair one and politics is a rough and tedious old game of tedious compromise. However, in relation to CCTV I have a constituent political input but also as a lawyer, I see it as a crown court reporter, as a criminal judge and I have rarely found a case in which CCTV evidence is deployed where it’s done any good because normally the condition of the film – the quality of the image is so poor that it doesn’t provide you with the answer – the clear Yes or No. So it does have practical difficulties and that is the David Davis line. But you’re right, in my own constituency I get people coming to me every week saying ‘If only we had CCTV down my street then my car would not have been broken in to’. Well, it’s a nice thought but its very expensive and its not something that’s probably going to happen. I think the way I look at it is, if a local community want it, they should have it, but I don’t think we should have it as a national system. If you walk as I sometimes do from Victoria station to Portcullis house, there are 800 cameras: that’s a mile and a bit. From Victoria station, all the way down Victoria Street – now some of it may be traffic control, some may be for crime control, some may be ornamental – but the point is, there are lots of them about and we, the public, need to know what’s going on in our country. I don’t want to be part of a Government that is separate from the people who elected us. I don’t want to be part of a great big machine that is totally disconnected – that does things for its benefit rather than for the benefit of the people who elected it. Easy to say. When I’m in Government – If I get into Government – I can assure you that I will go through the most appalling crises and debates in Parliament. As Dominic Grieve said – you have to be very brave minister – well, every now and then a minister has to be brave. Now, last summer, David Davies was brave. Now, you might say, its easy to be brave in opposition and to fight a by-election which you’re reasonably certain you’ll win. The test will come for me after the next election.
Iain Dale (Chair): That’s an interesting point Edward raises about the machine of Government. Isn’t the fact that bureaucrats exist to create laws, to have initiatives and to constantly encourage ministers to have initiatives – How does the Conservative Party get a grip of that machinery and maybe stop it doing the bad things that maybe it already has done.
Panel: Well that’s a massive question for the party across the board on legislation and getting things done. I don’t know the answer to that – there is an implementation unit that Francis Maud is coordinating and I understand that the Civil liberties agenda is part of the mandate that he has to prepare. Can I just respond and agree with what Edward was saying: firstly, I think that localism is in significant part the answer to a lot of these issues and I wouldn’t want CCTV in a pub but I’d quite like it on a tube train, late at night, when there’s no one else potentially around, and I think people will have that different view depending on the circumstances and I think we should allow people that choice to decide how they actually want their their freedom or their liberties to be protected and they themselves can help to choose the balance there. I also agree with what Edward said about David Davis’ brave stance: where I think the jury are certainly out on did he actually shift public opinion – I think there are conflicting polls on this, but the only like for like poll that asked exactly the same question before he resigned his seat and after he resigned his seat showed absolutely no change at all on the issues and these polls are being conducted in a time when the security threat seems to be huge and so I’m not sure I actually agree with you that there has been a public mood shift – I think there is certainly a group of people (this convention represents it) who think avidly about the subject. I think it’s certainly true that the ideas class represented chiefly by the media care deeply about this subject but I think Hazel is actually probably right about the public mood.
(Interruption) She always is
Iain Dale (Chair): A brief word from Laura:
Laura: I think people have to ask what our philosophy will be about managing government: it’s not just the implementation that Frances Maud is putting together, its about what our attitude to Government actually is and I would like to see much less activist political machinery: we need less legislation, much more considered legislation and we need to understand the unforeseen consequences of what we do, and at the moment we are just moving like a train. In Macmillan’s day, if you’d gone to him with ten pieces of legislation, he would sack you because you obviously are not running your department very well if you can’t manage it within the perameters today. And if we can find a philosophy which says “Do less, better” we have got a structure there by which we can actually ensure that what we do has a positive impact and by being less activist, it will have less impact on our civil liberties.
(Interruption): That’s a very good election slogan – “do less better” – I like that.
Dominic Raab: Since I’m Dominic Grieve’s Chief of Staff I’m going to agree with him whole-heartedly. But the Conservative Party has, since 2006, made very clear that we want a Bill of Rights to replace the Human Rights Act, but also to consider and look at (and David Cameron made this clear in 2006) the issue of stronger protection for the core freedoms so in terms of the over-arching parameters – in terms of constitutional reform – bear that in mind as well.
Panel: Yes, I would totally support that, both the repeal and the restoration: I think that to speak to an earlier agenda – I think it’s important to remember where this desire for security actually comes from –where this desire for CCTV, the bigger role of the Government comes from and it comes from the collapse of our trust in each other. The very fact that we now have a politics of fear is because we have stopped being an associative society. If you track trust from the 1950s to now, I think it’s gone down by about 60 % – people no longer trust their fellow neighbours, they no longer associate with their neighbours. Danny Dawling did a study of community, and he concluded that the weakest communities in the 1970’s – they are the communities where people were disassociated with one another – are stronger than our strongest communities today. So we’ve seen an unprecedented loss of the associative or the civic – and its exactly that: when we become frightened individuals who are afraid of our neighbours’ children, that’s when we demand massive state control and massive state power: and that’s why I think the Conservatives’ civil agenda is so important because if we can manage to restore and facilitate and enable people to start trusting each oter again and learning about each other then we can minimise the politics of fear and start driving down the desire for an authoritarian state and I think that’s the true radical path of modern conservatism.
Iain Dale (Chair): Tim, is there anything the Government’s done in this area that you wouldn’t want included in such a bill?
Tim Montgomery: I wouldn’t repeal 28 days: but I certainly completely support the repeal of all aspects of Labours ID card scheme and I want to look at all the items on a one by one basis and bringing in what you started with about the Liberal Democrats, I had a story on Conservative Home earlier this week that one of the things the conservatives want to do if it wins this election and particularly if it wins handsomely, if it wins well, is to improve outreach to the lib dems on a couple of issues where a common cause might be pursued and one of those issues is civil liberties – the other I think is green issues. I think potentially you would see the conservatives, in a few areas of civil liberties, trying to make this cross party. And on ID cards and other issues I certainly support that.
Laura: yes I certainly agree. I think very much picking up on what Philip has said, the trust issue has driven – and in many ways weak politicians – have allowed fear to drive the agenda and I think it was a Conservative piece of legislation which in my mind started a little bit of this legislative activism was the Dangerous dogs act and suddenly everyone was looking at the front page and thinking, ‘Right, well that’s our agenda for the day’ and we’ve lost that sense of, in some ways, politicians taking difficult decisions, not taking decisions is sometimes the best of all things and I would agree with the repeal and restore: we could call it the Restoration government.
Iain Dale (Chair): So you’ll do nothing conservative Laura?
Laura: To answer your question directly, Dominic Raab is Dominic Grieve’s chief of staff and Dominic Raab, in that capacity said ‘Get me on my desk by the end of next week a list of the acts that we wish to repeal’…. There is actually a delicious irony at the moment. I find the imbalance between state power and individual civil liberty unattractive and yet at the moment in some quarters the state is being seen as a benign instrument: we are in the recession and we are all looking at the state – whether we are Americans or Europeans – to settle government and bail us out of our home. And there is no better symbolic example of the Individual will at play than the city perhaps. These individuals: people like Fred the Shred are now the scapegoat: they are the bad thing. Now there are all sorts of presentational reasons why the government is pushing this to seem to be the case but I do think we need to be careful at a time when people are worried about their homes, their jobs, their incomes, their expenses, that we don’t lose the plot and remember that by and large the state tends to be unhelpful, rather than helpful. In relation to Tim’s point about outreach to the Liberal Democrats, it just happens to be the case that on the Coroners and Justice Bill we have been in locked steps with the Lib Dems, we have been defeated by one vote – the Government had a majority of one vote on the committee. …
Tim Montgomery: Well I’ll try to prove my credentials in a second but on asylum seekers I’ve always hoped and believed that the Conservative party should have a very generous approach to asylum seekers: Michael Howard not least was a beneficiary of Britains generous asylum policy in the past and I think that the debates are always incredibly muddled and immigration and asylum are always lumped together – particularly in a recession – in an incredibly unhelpful way, and I thought one of the policies we’ve had in recent times that I was more ashamed of than any was the idea that we would put a cap on asylum numbers and I don’t think you could ever put a cap on asylum numbers if there is going to be a humanitarian crisis somewhere around the world. And in the same way, on immigration I favour a very strict policy particularly during a recession because I don’t think we need huge numbers of workers coming here at the moment when we have potential huge unemployment problems when on asylum I think we need a very generous policy. Trying to answer your wider question, I think human rights do need to be defined in a way that is more universally viable – I think the human rights abuses that are taking place in Zimbabwe at the moment, that are taking place in lots of countries really are extraordinary human rights abuses. Some of the things we see happen in Britain that are compared to those countries are in a completely different league and rights to be free from torture, rights to be able to change your government are on a different level from rights to have pornography in prison and I think that distinction does need to be made incredibly powerfully and unfortunately, when you mention human rights to a lot of people in Britain now they think of the right to have pornography in prison and that’s bringing a wider discussion of Human Rights into disrepute and I don’t know how we solve that problem but I think it is a problem.\
Iain Dale (Chair): Does anyone take issue with anything Tim’s said?
A: I think there is discrepancy here: I talk about British liberty in my book and elsewhere – what I have in mind is the British idea of liberty which is liberty based which is in contrast with the EU continental model which some people in this country do advocate: that distinction I would advocate wholeheartedly and I think its based on the kind of distinctions Tim’s drawing, but the ideas that you could have British citizens and British residents treated on a totally different basis – well that would be some kind of apartheid – clearly undesirable and clearly impossible.
Iain Dale (Chair): Is there anyone here who’s a complete sceptic in terms of the Conservatives’ commitment to civil liberties?
- Yes! -
Iain Dale (Chair): I thought Evan Harris might be
Dominic: On the Human Rights Act the fundamental problem I have with it is two-fold: one, it hasn’t done much to protect us over the last 12 years and secondly, which is the different question that you raised: I support the convention but I’m much more sceptical of the case law: you said we couldn’t be members of the convention without signing up to the case law but there’s nothing in the convention which requires that and in fact many other countries aren’t duty bound – their constitutional courts do not require them to incorporate all the case law. Under the human rights act what it actually says is you’re supposed to take it into account: if you look at how it’s been interpreted – the jurisprudence from Lord Bingham here – actually what they do is they match it. That’s not necessary. And I think we could avail ourselves of the margin of appreciation in that regard protect our core freedoms – which is what this convention is about- it’s about liberty – and get a bit more flexibility to tailor, and be a bit more clear, about these extra positive obligations that are being stacked on, time and time again, to the state.
Panel: Laura, Evan has got a point hasn’t he when he says about the Tory attitude to the so-called equality agenda: there are still many Conservative MPs who just won’t sign up to it aren’t there?
Laura: Well, I mean, you would know better about exactly who they were but I personally believe that the freedom of equality in the sense of our ability to be different, to have different views is at the core of being Conservative on one hand. The issue about the Human Rights Act is that we do need a debate about what are the essential Human Rights – we do need to build greater credibility into Human Rights and by ensuring that some of the things which are seen to be somewhat superficial or constantly questioned through the courts that the mainstream people don’t believe is a fundamental Human right. And if we can concentrate on those elements of human rights that are absolutely core to us all, and maybe look at the human rights act – at its peripheral areas – it wouldn’t have such a damaged name when you’re talking in the bar.
A: Who are these ‘mainstream people’? What on earth are ‘mainstream people’?
Laura: No I’m talking about how you get aspects of the Human Rights Act that get spun into the front pages of the newspapers that don’t seem to reflect what other peoples’ views are on what human rights are. But I do defer to my panel.
A: Two areas where I think the Tories have not been consistent: one was in the Lords – they threw in the towel before the last vote on ID cards. Only Norman Tebbit went through the . . . and in the repeal issue the Tories have been equivocal at best over rendition and Guantanamo and Torture rights and I’d like to ask Dominic Raab, what exactly is the difference between British Liberty and European Liberty and how I don’t understand the concept that you can be a brilliant part of the Convention and yet not . . .
Dominic Raab: It was indeed and of course and when we signed up to the court in 1966 it was a British Judge who was formerly Foreign Office Legal Advisor who uttered an absolutely searing descent when the Court started legislating judiciously, so the two are not necessarily incompatible. The short answer is there is absolutely nothing in the convention that requires you to import all of the case law wholesale into British law. It is strictly not true. I was a Foreign Office Legal Advisor for six year – as a matter of international law, that is not required. You can make the case that it’s desirable, but we don’t need to do it. So I think that brings us on to the second question which is actually ‘Do we want a continental model of human rights, or a liberty based one?’ I think what you’ll tend to find is that in the EU and on the Continent, they are much more inclined to promote economic and social rights and bridge the gap between the two. And it reflects the Marxist critique of liberty…
Interruption from audience: That’s not in the Convention
Dominic: No, it isn’t, exactly. And that’s why I think, if you want to have that debate about a liberty-based or a Continental approach to rights, it shouldn’t be done by judicial legislation – it should be done ultimately at the ballot box, but through debate.
Interruption: I agree with you on economic and social rights, but that’s not the point.
Edward: I think what this discussion has exposed is the different legal positions between Continental Europe and the United Kingdom. Both are aiming at the same point. By and large it seems to me that under European law we are looking at a rights-based system whereas under English law we are looking at a remedy-based system. And we are heading into a coming together of these two traditions since the Human Rights Act which allowed Convention Acts to be directly justiciable in our English courts: there is a growing merger between the remedy-based system and the rights based system and this creates tension. It creates tension across the legal establishment but it also creates tension politically and the Conservative party is no less immune to these tensions than anyone else. The Conservative party is a coalition, just as the Labour party are, just like the Lib Dems – a coalition of all sorts of different strands but we come together to coalesce rather particular, broad themes. What I’m looking for at a meeting like this is a centralised discussion about how we can achieve something better for our country, but secondly so we can understand that there will be differences of opinion over quite fundamental questions between parties but also within parties and Norman Tebbit has his own eccentric and delightful style and he may well think that some things that I say are terrible are well to the left of…
But it doesn’t matter. What matters is that we come together as a group of successful individuals to create a common policy that will achieve that essential thing that is the recovery of the right of the individual to withstand the oppression of the state.
Question: My name’s Sian Oran, I’d like to make a probably very unfashionable plea for social and economic rights. I think that they may be messy and I think you’re getting into difficulties when you take a very pragmatic approach to what you can achieve and I think if you don’t have your economic and social rights then your civic and political rights become a lot harder to access, and you may be able to get them on the good will of the people helping you but you’re not really empowered in any legal way.
Chair: Who wants to answer that? Philip
Philip: I think the situation is this: if you look at any British appeals to liberty they are always historical. They are always talking about the rights we have lost, the times when freedoms have been taken away from us. So I think you have to have a traditional account of what is being removed: so many of the debates are about “we had these rights – an absolute power has formed and has taken them from us, and those rights in English history have almost always been social and economic: they’re about use of the land, the rights we have on common land, your rights of tenure etc etc. And looking at social and economic history, what actually happened in Britain is gradually, all of these rights were taken away from people and derived to a centralised State. So a centralised state was essentially engaged in several acts of dispossession. The rights that were removed were rights that were concomitant with social and political responsibilities so what I would say is that the notion of remedy already includes the notions of the social and economic and that includes what is due to an Englishman and that has to be in some sense the notion of self-sufficiency, property, the ability to exercise and be free, but we don’t need the Continental tradition to do that, because all rights are based on concepts of personhood and especially in England, all notions of personhood are associated with property. And then the Conservative politics are all about, for instance, creating a property-owning democracy, a society where people are self-sufficient and have the conditions to be so. So what I would argue is actually a proper historical understanding of English laws and English rights which runs alongside the social and we don’t need to import them from the Continent. The trouble is you can’t have Universality without particularity because the trouble with Continental models of the Enlightenment is they say, if you’re not like me you’re a savage; if you’re not like me you’re not reasonable. And that sort of French revolutionary Universalism, delegated to itself the ability to legislate to all peoples: you have to be like us if you are going to be free. But actually since I am a Conservative and I believe in History and freedom, I think there are different formal models of what constitutes personhood in different traditions, and the key for Conservatives is to have a plural society, and that may mean plural in terms of different cultures debating with each other what good is. English liberty has far more to it than Continental versions.
Question: I’m here on behalf of Independence Defence Lawyers, a group of 50 firms of criminal solicitors. We’ve been responding to a series of papers, about the DCA, ministry of Justice and the Home Office …
My question fundamentally is, why do we have to address these issues under the terms of rights, when fundamentally they’re issues of just, good government. Ministers should be controlling officials not the other way around.
Chair: As a possible future minister, Edward, would you like to take that one on?
Edward: Just having listened to this I am going to put on the front page of my manifesto, ‘Vote for me and celebrate your personhood’ and I thought that would get me through… I rather agree with you to some extent but unfortunately its not the language nowadays which is in use. Can I say that you have a right to go to hospital to be treated for a particular complaint? You might say, you may or may not have a right to that but if you ran the hospital properly you would get that remedy which is the cure. What we need is ministers who are powerful enough and brave enough to resist wrong advice but also politically open enough to accept ideas from traditions that may not be their own.
Question: John Morrison: I’m still confused about Conservative policies and if I was in charge of the Liberal Democrats then I’d be very sceptical about going into conference with you. I’m a liberal of the old fashioned sort, I support the Human Rights’ Act: I still don’t know what the Conservative Party’s attitude is to the Human Rights’ Act. I’ve heard an awful lot of contradictory things said in the last hour that made me extremely sceptical. Lets take the CCTV issue, just for one, if your associative model is used, CCTV cameras put up by communities will be able to do all sorts of things – they’ll have the technology to be able to recognise people, individuals, by facial recognition of what people are doing. You will have communities banning people from wearing veils, hoods or even hats. This will be fine according to your associative model. I would like the state and parliament to set down very clear rules to stop that kind of thing happening.
Answer: I think the reverse is true: what would actually happen is only those communities that are under dire threat of criminal behaviour would actually vote for CCTV cameras and even then on a temporary basis and I think that what would actually occur is the gradual stripping away or removal of surveillance from those communities that felt secure. For most of my associates sadly that could be the only solution for the general sense of fear and atomisation. So I’m actually addressing the key issue to which CCT cameras are a false computative response which is to get people to buy into one another and to remove this sense of fear and suspicion.
Dominic: Well there’s an interesting paradox isn’t there because you want the state to intervene as a liberal and yet these guys want local communities to intervene.
Audience (Morrisson): You’re not acknowledging the role of the state for the legislation in protecting our rights. It’s the same with social and economic rights – if you don’t have them then any employer… 36.50
Chair: Dominic do you want to come in on this?
You’ve been in opposition for 12 years and you have not thought these things through – it’s patently obvious.
Dominic: What’s the question here? In terms of CCTV I think what we’re talking about here is actually common sense: eighty percent of the cameras don’t work properly and one of the things in terms of public opinion which came out in the Home Office’s own reports – it’s fascinating how minsters don’t read them – is, often, after deployment, public approval goes down.
You aren’t agreeing with each other…
Dominic: Tim’s a commentator, I’m an author, we don’t pretend to agree on everything: but just in terms of CCTV I think there will come a point and during the recession that half the billion spent on CCTV during the recession – there’ll be a real question about local communities actually getting real value for money. In terms of the human rights act the Conservative position’s been very clear: we would abolish it but replace it with a Bill of Rights and stay within the Convention.
Right, final question
Question: At a time when millions are not voting at the General Elections all politicians seem to be talking to the electorate but not listening. MP’s may well have a website but they are often not seeking a response. Now Barack Obama spoke daily to every supporter, encouraged local meetings: Conservative MPs and liberal MPs are in the House of Commons but they are often not in the chamber even for very important debates and now that the public is waking up to how our liberties and freedoms are being eroded, the conservatives have an enormous opportunity to be elected by a huge majority. But Conservative MPs must work harder and above all listen – do they agree?
Answer: Amen, I say to that: the decline of Parliament as an institution is something which didn’t begin under Labour but which has accelerated enormously. I remember Gordon Brown making big promises to only make announcements in Parliament and yet more seem to be made on the Today Programme. Its great to hear Edward Garnier talking about the scrutiny that he is making of legislation but I think there isn’t enough of that sort of detailed scrutiny of legislation simply because of the sheer volume. And that comes back to the gentleman’s earlier point that the activism of Government is enormous. I think, only when we reduce the activism, by doing less but doing it better, by having the sort of sunset clauses to legislation so that they expire – that’s the sort of Dangerous dogs act thing that passed in a frenzy – later built into the bill, maybe two or three years later, it should have expired and only people who really wanted it renewed should show it should still exist. I think my main thing is just to do less.
Panel: If the state does less, communities can do more. One of the reasons we’re so passive is because we’ve been taught passivity from the day we were born. British citizens no longer exercise power in almost any realm they come up with as they go through life. But if people can gradually have power devolved to them and they learn to practice it and use it, then they realise they’re active. And then in being active, the state doesn’t need to be so active. And the state can take a different role instead of being the only actor within our politics, which is what we have now in our society, where only the state really has power. We ourselves have to become actors or authors of our own natures and communities.
Chair: Well, its one o’clock and I’d like to finish on time and thank all of our panellists. We hope you’ve enjoyed the session.
(With thanks to Mark Brough for transcription)