Who is Jack kidding?

Liberty and the state: The erosion of our freedom is all about opinon polls and crass populism

Helena Kennedy

Ah, the boys are at it again. Somewhere in the back rooms of government there have been discussions about how they should deal with the Blair legacy on civil liberties. What should the public line be on: internment without trial, control orders, efforts to include evidence based on torture, repeated efforts to reduce jury trial, attacks on the independence of the judiciary, reducing rights to protest, hugely extending custody before charge, abandoning safeguards for accused people so that previous convictions go before the court, undermining of the burden of proof and assumption of innocence, subversion of new technology such as telecommunications and DNA for undeclared ends, introducing identity cards so that people can be monitored at all times, attempts to remove access to the courts for those refused asylum? How do we repackage the narrative, our old friends would have wondered.

The former Attorney General is telling us now that he would have resigned had 90 days gone through, when he did not utter a peep at the time. This has caused cynical laughter in some circles but reworking history is the stuff of politics. Telling it differently is how the game works.

And in Wednesday’s Guardian we had a superlative example of repackaged narrative. With jaw-dropping chutzpah, Jack Straw tells us that not only is it a complete fantasy that Labour reduced liberty – in fact Labour advanced its cause. Well, as my old mother would have said, tell that to the marines.

This piece of effrontery did not come as a total surprise, as only a couple of weeks ago I was invited to debate the government’s record on civil liberties and heard the same load of horse manure fall from the mouth of the former Lord Chancellor, Charles Falconer. It is the new line. “We gave you human rights so we have actually added to your civil liberties.” He who fashioned it? I can hazard a guess but, dear reader, do not be misled. What it tells us is that spin is alive and well and sadly living in the hearts of some of those we thought had been translated to the new administration unencumbered by the pall of the old.

Just look at our achievements, says Jack. And indeed they are many. Labour in government has been more socially liberal than any previous government. The reforms on homosexuality, violence against women, racism and many more issues have been exemplary, but Straw makes the crude mistake of thinking human rights and civil liberties are precisely the same. They are not. Arguing for a society to accept and value the humanity of everyone is the starting point for any civilised society. Human rights is the language for shared living, the grammar of our interconnectedness.

What the Holocaust taught us was that states and governments are not the only abusers of rights; our neighbours too can abuse us, so can our partners, our spouses or our parents. We have collective responsibility to ensure that all people can flourish in our society free from discrimination and hostility and harassment. The government seemed to understood this when it passed the Human Rights Act, a piece of legislation which says that the state should ensure that those who beat or sexually abuse or debase another are brought to account. All to its credit. What they have squandered is the mortar that holds together the relationship between citizen and state.

Civil liberties are about containing the power of the state and are rooted in ancient soil; civil liberties recognise that the most egregious abuser of all can be the state. It may have started with the king, but we know now that government in all its forms has the tendency to hoard power – a truth we should never forget. History has also taught us that those who have power are often tempted to abuse it, whether they are government ministers, police officers, bureaucrats, prison or immigration officers.

Of course, there is overlap between human rights and civil liberties. The great advance of the postwar consensus on rights was to accept that fair trial and the right to religious freedom and the right to family life should not depend on citizenship but should be vested in each of us by virtue of our common humanity. But Straw has placed a haze around the importance and virtue of civil liberties and their purpose of actively restraining state power. It is not enough for us to have the Human Rights Act as a safety net, to be put into use after the event. One of the most disgraceful conjuring tricks in the Blair cupboard of illusion was to claim that he was rebalancing the criminal justice system in favour of victims when in fact he was creating new paradigms of state power.

Why have we seen this erosion of liberty? Firstly, let me make it clear, the Labour party is not full of authoritarians. Just a few. Jack is not a man of straw, but he is a wily operator. The sad truth is liberty has been the casualty of the new politics, a new and shallow politics, which understands the potency of “law and order” initiatives in the eyes of a fearful public. In the shallow obsessions of the pollster, these are issues which they think could win the marginals. This is all about crass populism.

The considerable and far-reaching erosions of civil liberties which have taken place have the short term purpose of wrong footing the other parties. It is a win/win situation. Get your legislation through and trumpet it as a triumph of tough government; lose the vote and have the knowledge that you can berate your opponents as lily-livered wets. David Blunkett and John Reid relished their reputations for toughness like playground bullies and Derry Irvine, who tried to bid for some restraint, was one of the casualties of that illiberalism. The costs are long-term. In many ways, the law is the autobiography of a nation, and this has been a sorry chapter.

Mr Straw, your claims are a sleight of hand. Our liberties have been eroded and a serious abandonment of principle, to which you lent your name and your votes, has been in train. But it is not too late. I have always believed in the rehabilitation of offenders.