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02 October 2006
SPEECH FOR CONSERVATIVE LIBERTY FORUM AND LIBERTY’S
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I am very pleased to be able to give this speech under the auspices of the Conservative Liberty Forum.
Its setting up at the start of this year marks an important step for our Party in reclaiming one of its most important traditions.
Liberty, the freedom of the individual, has always been at the heart of Conservative philosophy - so much so that we have rarely had need to debate the detail amongst ourselves.
It has been so engrained in our country’s history that its underpinnings, the rule of law and liberal parliamentary democracy, have been accepted by all mainstream political parties. It is embedded in our culture.
Its origins go back a very long way. 500 years ago our country was a royal autocracy reinforced by compulsory religious orthodoxy and tempered only by the common law, by custom, the occasional recalcitrance of parliament and in extremis rebellion.
This transformation to a pluralist democracy is a remarkable story and we are fortunate that others before us chose often in difficult circumstances, and not without conflict, to protect and expand rights and freedoms when it might have been easier not to do so.
The Bill of Rights of 1689, Catholic Emancipation in 1829, the Reform bill of 1832, the abolition of slavery, the end of Jewish disabilities in the 1850’s, Votes for Women in 1918 all had their opponents, as clearly did Magna Carta from the point of view of King John who saw it as a major obstacle to strong governance.
The religious settlement hammered out between the 16th and 19th centuries required much forbearance and we should be thankful that our political culture has encouraged the careers of Vicars of Bray over that of British versions of the Ayatollah Khomeini.
Conservatives have not always been on the side of the angels. Other political parties have made their own contributions particularly in the field of human rights and social justice. But our contribution has been important and distinctive.
There is a persistent strand of thinking that has put the development of the right to freedom of conscience at the heart of our philosophy. It was strong enough to sway the Duke of Wellington into championing Catholic emancipation against those who feared the abandonment of Protestant identity.
The desire for security and prosperity within a limited state, subject to the rule of law, led Edmund Burke to denounce the French Revolution when it was fashionable to overlook its excesses.
And there is the romanticising of freedom by politicians such as Disraeli that did so much to establish it as a distinctive attribute of Britishness, the foundations of "One Nation".
It was principled adherence to this philosophy that made Churchill insistent on the release from detention of Oswald Mosley, when others in his wartime cabinet thought it a good thing that someone with such reprehensible views should stay in prison, even if not convicted of any crime.
It also underlay Churchill’s visceral dislike of wartime identity cards and his determination to be rid of them.
When I entered parliament in 1997, it did not occur to me that this legacy could be threatened.
Indeed with its plans to incorporate the European Convention on Human Rights into our law, New Labour seemed to have seized the high ground. Conservatives might express anxiety at the way in which its incorporation would operate to reduce parliamentary sovereignty or politicize the judiciary, but incorporation loudly proclaimed Labour’s desire to promote the human rights of individuals against the power of the state.
But the evidence of the last 9 years is that Labour has delivered the opposite of its proclaimed aspirations.
We have had a succession of Criminal Justice and Anti Terrorism Acts that have increased the powers of the police and of prosecutors and reduced or removed the protection that exists for individuals under investigation for an alleged offence.
Even before 9/11 Labour’s Terrorism Act 1998 passed by Parliament in 48 hours after the Omagh bombing introduced the ability to convict a person of membership of a proscribed organization on the opinion evidence of a senior police officer. Mercifully perhaps for the Government it has never been used or tested in court.
Then we have the post 9/11 legislation. This has created Control Orders, which subject un-convicted persons to restrictions on their freedom without them knowing the evidence against them.
The criminalisation of the “glorification” of terrorism was drafted so widely that the Irish Taiseoch is undoubtedly at risk of prosecution when he commemorates the Easter Rising.
The period of pre-charge detention in terrorist cases has gone from 7 days to 28 in 3 years, with an attempt to take it to 90 days. For all his new found softness I note Gordon Brown is now committed to trying to do this again.
Under Labour, legislation has been passed in the Proceeds of Crime Act to seize the assets of suspected criminals on the lower civil burden of proof. It also provides for a remarkable power to potentially require a person convicted of the most minor offence, such as no tail light, to prove the origin of all of his assets or have them confiscated. King John would have approved of this.
Moreover, we have seen Labour attempt to restrict the right to trial by jury in the name of greater efficiency; and their creation of a national DNA database that is in part dependent on retaining the DNA of persons who are arrested but not convicted or charged. This has contributed to creating a two tier society of the “monitored” and “free“. I know from the angry letters in my mailbag how hurt some of the wrongly arrested are when they are sullied in this manner.
We have ASBO’s and dispersal orders to control the unruly. We will soon have Identity cards and a national database on children containing highly sensitive information, such as medical records, accessible to a wide range of police, social workers and bureaucrats.
We have a Civil Contingency Act to give the government the power to suspend virtually every statute in an emergency so that it could rule by decree. And the Government has acquired the power to repeal most legislation by decree in the Legal and Regulatory Reform Act.
Last but not least in this far from exhaustive list, we saw this year the first attempt to reverse an historic trend towards greater freedom of speech in order to prevent expressions of intense dislike of others on the grounds of their religious beliefs.
Now I accept that some of these measures might have a limited impact in preventing crime and terrorism, but taken together they represent a massive accretion of state power over the citizen and there are now plenty of examples of these and other powers being exercised in ways concealed or unintended at the time the legislation was enacted.
• Innocuous protestors prevented from reading out at the Cenotaph the names of soldiers killed in action in Iraq.
• Poor Mr. Wolfgang arrested under anti terrorist powers to remove the risk that he might heckle a minister at the Labour Party conference.
• T shirt vendors told that “Bollocks to Blair” on their product is unacceptable as it threatens public disorder.
• Street preachers informed they can no longer warn us of hellfire.
And fascinatingly, whether it is to protect us from terrorists or from the local hoodie, there is little evidence that all this legislative and criminalizing effort is making our country a safer or better place.
On the contrary, in the midst of much prosperity, people appear increasingly worried about the future. How often on the doorstep have I heard electors express despair at what our country will be like for their children and grandchildren and say they want to leave.
We need to examine how this state of affairs has come about if we are to find a better way forward.
The pace of change in the World since 9/11 has been rapid and frightening and has focused attention on existing trends that affect our country and are seen by the Government to threaten orderly communal life.
We have the mass movement of peoples on an unprecedented scale, fuelled by war, famine and global warming bringing to Britain hundreds of thousands of people per annum of widely differing backgrounds seeking a place of refuge or a better future.
Ideally they should all be seeking to share in the “British Dream”, where people are free, protected by the rule of law and stable political institutions and where the willingness to provide mutual support, symbolized by the welfare state is twinned with the rewards of social mobility for those who work hard. It is a dream summed up by Churchill’s vision of the “safety net and the ladder”.
But whilst many wish to integrate and have done so with spectacular success, the numbers of new arrivals are sufficient to bring about rapid demographic change. This has accelerated the creation of separate communities, leading parallel lives, who define themselves by differing belief systems or language and often with demands for recognition of their special status.
It has lead David Blunkett when Home Secretary to say “I am convinced that instability through high mobility and therefore turnover of population is a central factor in contributing to the decline in social capital”. It has also generated much soul searching from the Left as to what constitutes "social capital" which if you didn’t know is left wing jargon for neighbourliness.
While our society has been enriched by its diversity, mass immigration has brought to Britain the problems that many were trying to escape in their countries of origin such as religious bigotry, discriminatory attitudes and practices against women and minorities and political corruption which to its shame the present Government has shown a willingness to tolerate for the sake of electoral advantage and political expediency.
Many who have come here have often understandably not wanted to detached themselves from their countries or area of origin. This has created a powerful force for the good, enabling beneficial cultural and commercial links to be developed- Britain and India is a good example.
But we cannot ignore that it also means that controversies, hatreds and passions of which we have little understanding erupt into our domestic context.
Last year, I was criticized by the press for saying that my contact with young Muslims and the evidence of the anger, alienation, distorted perceptions and cultural despair of some of them made it explicable to me that some would seek to do violence to their fellow citizens. It was said I was excusing terrorism. I was not. We cannot begin to tackle home grown extremism unless we understand motives. For too long we have stuck our heads in the sand and shied away from these issues.
The Government’s response to the July bombings sought to give the impression that the bombers came from outer space. They didn’t. Their ideology and attitudes were shaped while living in Britain. Others around them, not just Muslims but all of us, failed to challenge them or moderate their views. Cohesive societies work because we are constantly moderating each others views by argument and interaction.
The Government’s response to date however has been with a language of frightened and brittle authoritarianism that is hardly likely to promote our own values or make them attractive to those we seek to persuade.
Indeed one of the most worrying aspects of the Government’s response is the consistent message that greater diversity needs greater restrictions of freedoms, so that all will conform to a Government dictated framework.
And this has been accompanied until very recently by campaigns of denigration of national values and of our history, particularly within the field of celebrating achievement, in the belief that only deconstruction of pride in national identity will facilitate the creation of a multicultural society.
If this pernicious theory seems at last to have been abandoned by the Left we have a legacy of stifling political correctness that remains the norm of bureaucratic behaviour.
• Attempts to ban hot cross buns in schools so as not to offend Muslim pupils when no Muslim has complained.
• A local authority in the Midlands that denies use of its municipal theatre to a group wishing to perform a Mummers play with blacked up faces-a medieval theatrical tradition in England devoid of any racist context.
• A Government minister with special responsibility for matters of diversity who refuses to condemn the silencing of the play Beshti by acts of intimidation and violence.
• Attempts to tone down the importance of Christmas
We are subtly urged to accept all this as the new reality and with it the laws and regulations that can alone make it work.
We are also being told that we are at “war” with terror, with the implication that it is treasonable to disagree and even more restrictions may be necessary.
This leaves the majority population in a state of fear where they are prepared to sacrifice liberty for security.
And as Anatole Kaletsky has said it forces Muslims to choose and creates an atmosphere of “Them” and “Us” that reinforces extremism. And in challenging extremism the Government emphasises separateness by talking to “community leaders” and demanding that they sort out the problems as if they were not ones that concerned us all.
It’s a strange advertisement for diversity and multiculturalism. Small wonder that the BNP and UKIP attract the angry and the fearful; and that community cohesion, and with it the foundations of civil society, are both undermined.
And small wonder, that thrown back onto single identities, some, particularly the young, are attracted to religious extremism.
From my work as Shadow Attorney General and as diversity spokesman I am convinced that there is another way.
But we have to accept that the problems we now see with community cohesion and with the threat of home grown terrorism cannot be legislated away.
Our success in tackling it will be dependant on our winning a struggle of hearts and minds and in identifying those shared values which unify us.
It is for this reason that I think that our initiative to create our own home grown Bill of Rights is important.
I believe it has the potential to play a beneficial role in promoting a common identity.
For many Conservatives the European Convention on Human Rights and its incorporation through the Human Rights Act is viewed with suspicion. It is seen as a document that is enforced ultimately through the rulings of an international court and which seems on occasion to put the rights of undeserving individuals over the rights of the law abiding majority - the rights of Travellers is the one on which I get the most letters.
Such a tension will always exist in a civilized society living under the rule of law. It would exist even if we had no Human Rights Act and were not signatories to the European Convention on Human Rights.
But the idea that we can protect our collective and individual liberties through the common law and ancient statutes such as Magna Carta, Habeas Corpus, The Bill of Rights of 1689 and the sovereignty of Parliament is a romantic fancy in today’s world.
They have served us well through centuries when our country was lightly governed and the power of the state to interfere with the liberty of the subject was limited. They cannot protect our civil liberties in an age when we are governed by statutory instruments; and the regulatory and intrusive powers of the state are so great.
A Bill of Rights enables us to do exactly what was done in 1215, 1679 and 1689-find a pragmatic legislative response to the dangers of excessive executive power and action in a period of discord.
It also offers three great opportunities.
Firstly, while remaining compliant with the European Convention on Human Rights there will be an opportunity to define the rights under the European Convention in clearer and more precise terms and provide guidance to the judiciary and government in applying human rights law when the lack of responsibility of a few threaten the rights of others.
Provision for different interpretations of the European Convention on Human Rights already exists under the principle of the "margin of appreciation". The Human Rights Act reflects this by ensuring that our courts only need be "guided" by European Court of Human Rights decisions. It is noticeable however that our courts have always felt bound by them.
This change won’t remove all controversy. There will still be some people for instance we cannot deport because of the fate that awaits them in their own country would constitute a violation of Article 3 on protection from inhuman and degrading treatment.
But it should help prevent decisions (like the one concerning the Afghan hijackers in 2004 that prevented their return to Afghanistan even after the regime they were originally trying to escape had been toppled) that appear irrational wrong.
Secondly a Bill of Rights provides us with an opportunity to engage in a national debate as to what aspects of our legal and constitutional framework constitutes core values in the area of civil liberties that should be identified and protected.
Having watched the present Government at work I have strong views on this.
I have got angry seeing one piece of illiberal legislation after another be published with the statement on the front that it is ECHR compliant. The ECHR was intended as a safety net but it is being used to legitimise encroachments on freedom.
I believe that the right to trial by jury in indictable cases should be protected as a key feature of our participatory democracy and that key existing statutes, such as the restriction on the life of a parliament to five years could be brought within it.
Other areas to be considered include the prohibition of the imposition of fines and penalties without prior conviction, extradition, the interception of communications and the use of information held about citizens by public authorities.
We may also wish to add to the right to freedom of expression in the ECHR and ensure that principles of equality under the law are spelt out- an important issue at a time when there has been some lobbying to promote the idea that in "multicultural society" different groups may enjoy exemption from laws or the application of laws particular to themselves.
Recently there have been demands for the recognition of Sharia law in family matters by some Muslim groups. While there is a long tradition of courts recognizing private compromises based on religious beliefs, as long as they are freely entered into and compatible with our general law, I can see no scope for acceding to the demand for Sharia law without entirely undermining the principle of equality under the law in our country.
I have to say however that what has alarmed me more is not that the request has been made but the failure of Government ministers to explain why it cannot be allowed.
There are also sound arguments for including obligations of individuals to the wider community as well. Many other Human Rights Charters contain these- an example is the Universal Declaration on Human Rights. It is not clear to me why they were omitted from the ECHR when it was drafted.
Although they may be only in general terms, they could provide a benchmark in the balancing exercise that the judiciary must carry out in reconciling the rights of the individuals to the rights of the wider community.
Thirdly, if the document we draft is well worded and is perceived to provide protection to our rights and freedoms, then it will become effective in defining common values so that all British citizens of different backgrounds feel ownership of it.
As David Cameron put it, “it can make it easier to achieve the acceptance by every citizen of Britain of the rights of every other inhabitant of these islands”. "Rights" and "liberties" will no longer be a tool for those striving for special privileges but a protector of all and a reminder of the duties that we all owe to each other.
Unlike the USA, we have no principle in Britain of entrenching legislation. It will therefore be possible to repeal or override part or all of a Bill of Rights in exactly the same way as the Government has routinely done to Habeas Corpus and Magna Carta.
In order to provide better protection we are considering the feasibility of excluding such core legislation from the operation of the Parliament Acts. This would mean that any change to the Bill of Rights would require the approval of both houses of Parliament and couldn’t be pushed through by the Commons against the will of the Lords. This would provide the extra protection needed to deter government from interfering with it.
On its own a Bill of Rights will not provide all the solutions to the threat we face from creeping state authoritarianism in the face of terrorism and the fear of social disintegration .
But it’s an important step in restoring faith in those values that have made our country an exceptional haven of tolerance and progress in human development.
We then need to link it to a constructive programme of change to increase cohesion and security.
The key to this must lie in re-empowering individuals and small communities to take greater control in this area.
We have argued for the development of community based policing and the 40,000 extra officers needed to deliver it, because of the evidence that it reduces all types of crime from the most serious to low level anti- social behaviour. It needs to be coupled with much greater levels of local accountability-the absolute opposite of the merged police forces that Labour were seeking.
We also need to restore confidence in the immigration system. It really is a serious failure of government that after several decades where immigration took place with little comment has now been succeeded by a period where it is corrosive of cohesion and where the pressure of numbers exceeds the capacity of communities to absorb it.
Measures such as the creation of a proper border police may be costly but are affordable out of the money that can be saved on scrapping ID cards. These measures are more likely to reduce crime and disorder than any amount of legislation or tinkering with the criminal justice system.
We must also ensure that existing laws are enforced evenly and proportionately. It is both ludicrous and very worrying that we waste time and resources prosecuting teachers for alleged assaults on pupils of the most trivial character, yet it took intense parliamentary pressure for action to be taken against those apparently inciting murder outside the Danish Embassy.
The way we teach history and civics in school is also crucial. It is not so much that it is taught badly but generally it doesn’t seem to be taught at all. Unless we attach some importance to this we should not be surprised that new British citizens have little understanding of key aspects of our democratic values and their origins. Lots of members of the host community have lost all understanding of their roots as well.
There is a common narrative that has brought together all the citizens of this country from the Anglo-Saxon in his 5th century boat to the passengers on the Empire Windrush. It is not creating a fiction to give to children a story that can help them identify with others whose forebears have made the journey here from different start points. The processes that have brought us together in one place can be fascinating and help build a common identity.
Without ties of emotion, the concept of nationhood and the willingness to help fellow citizens who are strangers disappears. Far from breeding narrow nationalism a comfortable sense of identity is the greatest facilitator in enabling people to accept the identity of others.
As Conservatives we now have an opportunity to make an impact in this important debate. If we remain true to our core philosophy of maintaining and promoting liberty and avoid the temptation of espousing populist short cuts to the mirage of security, we can serve our country in a way that will give our children and grandchildren reason to be grateful.
DOMINIC GRIEVE MP
Shadow Attorney General and Party Spokesman on Community Cohesion.
2/10/06
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