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Defending Freedom

John Swift

Five Ideas to Fight For: How Our Freedom is Under Threat and Why It Matters, by Anthony Lester, Oneworld, 256 pp, £9.99, ISBN: 978-1786070883

Every generation imagines itself to be more intelligent than the one that went before it and wiser than the one which comes after.
George Orwell
Out of the crooked timber of humanity no straight thing was ever made.
Immanuel Kant

The quest for freedom is a basic dynamic of history and perhaps the single most inspirational rallying cry of modern political life. According to Kant, it is one of the vital ideas innate to humankind, existing before experience and independent of the faculty of reason. But freedom, or liberty, is not easy to analyse or describe. The Shorter Oxford positions it first as the polar opposite of slavery, bondage or captivity; it then defines it more precisely as independence, exemption from arbitrary control, unbound by despotic or autocratic rule. It is a relatively straightforward matter to list its most important component elements; a stress on its separate elements brings us closer to the medieval approach (“liberties”) than to the modern (“Liberty”, often capitalised). In the post-World War II world, Freedom/freedoms are consolidated and codified in domestic and international laws on human rights.    

Anthony Lester’s book is a comprehensive, fair-minded and factual account of what has been happening to human rights in Britain over the past half-century or so. The hardback edition was published in 2016, a few weeks before the UK’s Brexit referendum, and more than a year later the book, now in paperback, remains depressingly relevant. Lester is a law lord, a QC, a Liberal Democrat peer and a long-time human rights campaigner. His five ideas comprise human rights generally, and specifically equality, free speech, privacy and the rule of law. While applauding the advances made in the United Kingdom during the period covered, most especially through the Human Rights Act of 1998, he also notes the consistent attacks by the government on the European human rights system since at least 2011; he warned in advance of the possible negative consequences, which are now apparent. 

The attitude of the British judiciary to the constitutional rights of British citizens changed in the late 1970s. Until then, judges were in general over-deferential both to parliament and to government; according to Lester, British rights law was ethically aimless and hidebound by tradition. A new generation of judges, more interested in protecting citizens against abuse by the state, drew on the European Convention on Human Rights (ECHR) model and habits of thought for moral and legal standards. This trend was strengthened after Britain joined the EU, as the judges increasingly used the ECHR to develop English common law

If British citizens benefited greatly from co-operation with the Court of Human Rights in Strasbourg, the relationship was not all one way. In many ways, “the European Convention was as British as roast beef”. The Conservative Party under Churchill and Maxwell Fyfe led the way in creating the Convention system, the UK was the first of the founding members of the Council of Europe to ratify it and Lord McNair became the first president of the court. The contribution of the UK and Ireland, and later of Cyprus and Malta, to Convention law, is notable. (Today, membership binds forty-seven member states and gives equal protection to 820 million citizens of Europe, and their resident non-citizens.)

Lester considers that, in the twenty-first century, the biggest potential threats to freedom come, not from external enemies or terrorists and jihadists, but from the state, its agents (including the police and intelligence agencies) and populist politicians, on the one hand, and from business, particularly businesses connected with the internet, on the other. The internet brings new opportunities for free expression across borders; but it ‑ and especially search engines, email providers and social networking sites – also gives new surveillance capabilities to friends and enemies of the open society by harvesting the private data of customers in bulk and selling it to advertising and other private companies for profit. The possible threat to privacy and personal autonomy cannot be overemphasised.

Throughout his study, Lester stresses the role of a free press in defending the right to freedom of expression and helping to hold governments accountable; but he also makes clear his view of the scabrous nature of the British tabloid press and its deleterious influence. He highlights in particular the contrast between the media’s proper cherishing of free expression and their disregard of the privacy rights of those they victimise and exploit for commercial gain. This last point illustrates one of the book’s strengths, the author’s non-doctrinaire and balanced approach to the complex subjects under review. He is a relativist: while a number of human rights are absolute, for instance the right to life or the right not to be tortured, most are, in their detailed application, subject to checks and balances. Thus, the rights to privacy or to freedom of religion are limited by a proper evaluation of security and public good considerations. Many of the conundrums of human rights law must be dealt with pragmatically, with due regard to the society in question and its public opinion; the role of parliaments in judging this balance is given due weight. But if there are few absolute answers, he believes that the difficult issues must be identified, reflected upon, defined and refined to the greatest extent possible. It is not good enough to simply appeal to the proper context and plead for a sense of proportion.

Lester’s account is enlivened by a series of personal anecdotes and legal case histories. One of his heroes is Roy Jenkins, the last truly liberal home secretary (as long ago as the 1970s). Among his bêtes noires are Jack Straw and Chris Grayling. He writes crisply and does not include too much obfuscating detail. What comes across most strongly is his passionate commitment to the principles of human rights protection in the interests of civilised decency, and for the sake in particular of the weaker members of society.

The Vienna Declaration of 1993 stated that human rights are indivisible, inter-dependent and inter-related. Lester notes that while free speech may be the essence of the culture of liberty fifty years ago in the United Kingdom it remained a political value rather than a legal entitlement, since it could be trumped by considerations of national security, public morals or public order. It is now protected by the common law and by Article 10 of the ECHR. Lester asks a series of questions. We all cherish our own right to freedom of expression, but what about others who take away our reputation, attack our religious beliefs or use hate speech? Where are the limits of free speech by reference to good reputation, privacy, official secrecy or journalists who refuse to disclose their sources? There is no single answer or organising principle here, and the problems are more difficult than ever in the digital era, which may give a global voice and reach to the marginalised but also empowers cybercriminals, terrorist groups and the security agencies.

Lester identifies for further thought and possible action the “prevent policy” clauses of the British Counter-Terrorism and Security Act, 2015. This seeks to ban “extremist” views from defined locations, including schools and universities. The difficulty lies in defining “extremism” and/or “British values” on the one hand, and in seeking to prevent offence on the other. He quotes Orwell: “If liberty means anything at all, it means the right to tell people what they do not want to hear”, that is the right to offend. He concludes that the right to offend is the price of free expression.

He has great fun with the details of the “Spycatcher” case. Peter Wright’s 1987 bestseller of that name provoked the Thatcher government, the law lords and Robert Armstrong into a series of highly foolish decisions (trying to ban publication in England and Wales, while not banning imports, trying to censor it in Australia, even seeking a permanent injunction against publishing excerpts) and an inevitable climbdown. Lester argued the case sixteen times and Wright died a millionaire.

On privacy, he is severely critical of the decades wasted in futile efforts to base policy on self-regulation by the press industry, from the Younger Committee on privacy, through Wilson’s Royal Commission (1974), the cheque-book journalism of the Peter Sutcliffe saga, the Calcutt Committee, the Royal Family scandals, the toothless Press Complaints Committee, down to the hacking by the News of the World and other newspapers in this decade, the Leveson Inquiry and the Independent Press Standards Organisation (IPSO). He gives IPSO and its chairman, Sir Alan Moses, a qualified approval rating for the present (which is more than other critics such as Brian Cathcart are prepared to do).

His section on privacy and national security is new and frightening. It is entitled “The Surveillance State”, a title taken from Glenn Greenwald’s book on Snowden, the US National Security Agency and the leaking of 1.7 million classified documents in 2013. Lester begins with the alleged GCHQ programme “Tempora”, the existence of which, in accordance with established security practice, has been neither confirmed nor denied. The aim of this programme, it is said, is to collect and store all internet traffic entering and leaving the UK (between 10 per cent and 25 per cent of global traffic). If the agencies have the capacity, and perhaps the intention, of acting in this way, then the basic security paradigm has changed. Instead of MI5, MI6, the CIA and NSA identifying specific people who pose a threat and putting them under surveillance, it may now be putting everyone under surveillance in order to decide later who poses a threat. Lester is no scaremonger, however, and he does not claim to have all the answers. He believes some surveillance powers are necessary in order to detect criminals, including terrorists and cyber-ransom-racketeers, and self-evidently, this must be done in secret. But he asks pertinently where are the limits and how can the accountability of the agencies, and their ministers, be assured. He believes Britain is tilting too far towards a closed society, and that the agencies and their political masters have destroyed public confidence in their work.

On the rule of law in the UK and the US, the accounts here of Guantánamo and the Binyam Mohamed case, while not new, are also very frightening. The section on Guantánamo opens with the setting up of CIA prisons across the globe and outside the reach of US justice in the wake of 9/11. Defence secretary Donald Rumsfeld explained that detainees suspected of links to al-Quaeda or the Taliban were not entitled to prisoner of war status, and that they would be treated in accordance with international law only to the extent that that was consistent with “military necessity”. Extraordinary rendition was to be part of administration strategy and fifteen new “enhanced interrogation techniques”, including waterboarding, were authorised. What these procedures meant in practice is illustrated in the Mohamed case. An Ethiopian resident in the UK, he was arrested in Pakistan, “rendered” to Morocco and Afghanistan, held in Guantánamo for five years, and tortured there. (Lester reports that this was established by US courts later, but gives no further references.) He was interrogated with the help of information passed on by the UK intelligence services. Mohamed brought legal proceedings in England seeking information and was refused by foreign secretary David Miliband. The High Court found that UK agencies had facilitated wrongdoing and that the information sought was essential to a fair consideration of Mohamed’s case. But it deleted from its published judgement a summary of a US report stating that the UK had known how he was being treated when they facilitated his interrogation. Eventually the UK Court of Appeal ordered publication of the redacted paragraphs. Mohamed was released and returned to England, and all charges against him were dropped. When he and several others sued the British government, it denied liability and asked for a secret hearing, based on national security considerations. The Supreme Court said this would require new legislation; the government settled the case for an undisclosed sum but said that if it had gone ahead, this would have cost the taxpayer between £30 and £50 million.

Lester’s chapter on general human rights contains a useful summary of the bedrock freedoms we are inclined to take for granted until they are infringed. It also helpfully lists the ways in which the Strasbourg Court of Human Rights anticipated English common law and helped it evolve, notably in the Ireland v United Kingdom torture case, of which the treatment is cursory enough. (The allegations that the UK exported the so-called “five techniques” of “deep interrogation” to other states, including the US, Israel and Brazil, in spite of Edward Heath’s promise that they would not be used in future, are not mentioned; the techniques of coercive interrogation were and are illegal under both international and British law.) In addition, Strasbourg helped to protect free speech and press freedom, especially against broad use of contempt of court laws, for example in the thalidomide case in 1979 and in a case on whistleblowers in 1985; it provided redress to children subjected to corporal punishment; it protected homosexuals, ruling that the existence of the criminal offence was itself a violation of the right to a private life (1983); and it ruled against the unauthorised tapping of telephones (1991) and the deportation of people to countries where they faced a risk of torture (1997).

The fine chapter on equality covers a surprisingly large field. It begins with the affirmations that belief in the equality of all human beings is at the heart of liberal thought; and that the principles are clear and as old as Aristotle: “Treat like cases alike, treat unlike cases differently.” Affirmative action, the important distinctions between direct and indirect discrimination and the role of parliament in deciding on the detail of tackling race, class or sexual discrimination are all considered and commented on. Landmarks in the legislation and case law of equality are dealt with. These include unequal pay for women, and the groundshaking 1976 ECJ ruling that the European principle of equal pay had direct effect in member states; discrimination in Northern Ireland and the Fair Employment Act; disability rights; sexual orientation discrimination and the Jeffrey Dudgeon case; minority oppressions (forced marriages, “honour” crimes, female genital mutilation, caste discrimination etc) and the finding of effective remedies against them through civil law injunctions; the various failed attempts from 1997 to make equality law more coherent and consistent; and the final achievement of limited success with the Equality Act, 2010.

The condition of global politics in autumn 2017 is bleak. Political standards in the United Kingdom are deplorable. The US can no longer be considered one of the good guys, even by inveterate romantics; for a decade and a half, it has permitted itself to tolerate detention without trial and torture of detainees by its accredited personnel. In its external relations, the EU has been punching below its weight in recent years, and its record in facing up to major problems like the refugee crises is less than exemplary. The Russian and Chinese regimes are locked into some of the more unsavoury aspects of twenty-first century finance-led capitalism and have not changed their authoritarian, anti-democratic character. The future of freedom and human rights, in the UK and elsewhere, reflects this overall deterioration.

Contemporary criticism of the assumptions underlying human rights advocacy may take two forms. The less important is that the populist reaction against it has not come before its time, that popular suspicion of legal experts, from “money-grubbing lawyers” to judges, is well-founded, that all wealthy elites use their expertise to justify and enhance their own prerogatives and that a focus on human rights is just another self-promoting confidence trick. The second idea, popular among politicians, is that human rights per se are remote from practical politics, that they are ideal and aspirational only, that they belong with motherhood and apple pie, that they have no place in the daily cut and thrust; practising politicians in Britain, from Stanley Baldwin through Harold Macmillan and Margaret Thatcher, from James Callaghan through Tony Blair, may be quoted on the inadvisability of visions and abstract principles. Lester’s study is valuable in that it illustrates, from his own experience in parliament and in the courts, how wide-ranging and practical concepts of freedom may be, and how the enforcement or non-enforcement of human rights may affect all citizens in their daily lives. In short, human rights are not another cash cow for ambitious lawyers nor a pie-in-the-sky pre-occupation of bleeding-heart liberals; they are a proper concern of all citizens in their own long-term interest.

The Brexit campaign and its aftermath have, I believe, brought British politics to a new low. It is not just that Brexit is illusory, fuelled as it is by frustration and nostalgia, and unachievable in the terms postulated by its most prominent supporters but that the process of seeking to bring it about must involve consequences which carry with them the threat of the gravest self-harm. The damage will be not only to the member states of the European Union and to the neighbouring island, but in the first place and most immediately to the British themselves. In that context, the deceit and half-truths, the failure of nerve, the appalling lack of courage and leadership and the ruthless personal ambition on display over the past eighteen months fade almost into insignificance.

A further benefit of this book is that it records in compelling detail how the Conservative Party has behaved in government for a long time; by implication it raises the question why the same group of people (and indeed the leaders of the non-performing principal opposition party) should continue to be trusted. Lester quotes to good effect Hubert Butler’s question: “What if the invader wore not jackboots but carpet slippers or patent leather pumps?” The corollary is that significant political failure, even tyranny, may result from a domestic culture of dishonesty and self-interest as much as from foreign enmity, when spread over time and abetted by a powerful but venal press. Its chief victim now and for the future is likely to be that British value cherished by Orwell, ordinary political decency.

In relation to what is happening across the Irish Sea on Brexit, Dublin’s biggest challenge is to avoid being associated with British negativism in the minds of our EU partners while maintaining the best possible relations with London; and to minimise the negative effects of the British action in both parts of the island. On this, we are doing relatively well so far. A further priority suggested to me by this study is that we should examine our conscience with regard to the Irish record on human rights, equality, free speech, privacy and the rule of law. The Irish record is respectable but far from perfect in these areas; in particular, the administration of our system of direct provision for refugees is a disgrace, and the continued lack of accountability of the Garda, the Immigration and Naturalisation Service and their parent department in relation to the Maurice McCabe, and, most recently the Paloma Silva-Carvalho cases, is inexplicable.

But Cassandra is a false prophet and generalised hand-wringing serves little purpose. The political resonance of memories of the European abominations of the 1930s, the mass slaughter of World War II and the positive socio/political revolutions in the West which arose in reaction to these catastrophes is fading. What will succeed that seventy-five-year-old general European consensus in the medium and long term is not yet clear. It is too easy and far too early to accept that the present downward spirals in the UK, the US and elsewhere will be longlasting. Freedom, liberty, justice and fraternity are not empty words and memory can still be a powerful weapon and a useful crutch. Speaking in Auschwitz-Birkenau in October 1999, the then incoming president of the European Commission, Romano Prodi, said: “Our memories are an ethical, historical and spiritual warning to us. They remind us that this happened, and can happen again.” To defend what has been achieved, to challenge our selective blindnesses and collective amnesias, to fight for civilised decency in public life defined by the human rights idea, are tasks for all; and success is not impossible.

1/1/2018

John Swift retired from the Irish Department of Foreign Affairs in 2006. His last posts were as ambassador to Cyprus, ambassador to the Netherlands and permanent representative to the UN (Geneva).

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