Entangled Alliances

photo credit: sunface13

So you may have noticed that my attempted liveblogging/twittering (tweeting?) from the Convention on Modern Liberty was not particularly successful, mostly because I just spent the time watching the debates, but also because I got a bit confused with twitter. All very complicated, this Interweb – it’s not a truck you just dump stuff on, it’s a series of tubes, you know.

The convention on the whole was pretty good. I had some preconceptions that it might be a bit worthy (or just outright smug) but in the end it was really interesting. Nothing particularly new but it brought together a lot of things in a more coherent way.

The aim of the convention was to spark debate and draw attention to the erosion of civil liberties in the UK after the last ten years.

A few things were worth noting (below the fold).

1. “If I hear someone using the term citizen again I am going to self combust”

This point was raised in the first Plenary after Shami Chakrabarti’s speech (and her unsuccessful call and response of “hell no”, I think this rhetorical device always sounds a bit weird and can have the unfortunate effect of turning thoughtful conventions into zombified rallies).

To begin with I thought that it was going to be a boring pedantic point, but it was actually quite interesting. As the woman (who used to work for the excellent Unlock Democracy) went on to say, “The state does not belong to me. It belongs to this strange construct called the Crown in Parliament. We need a new constitutional settlement”. In fact Republic had a stall and were a partner at the convention, and they argue (among other things) that the abolition of the monarchy and the creation of an elected head of state would help to enhance and protect civil liberties. Although I agree with their general aim (and stuff like this only helps to reinforce that view), and that our various aborted constitutional reforms have had the effect of concentrating power in the Prime Minister rather than simply removing it from the monarch, I’m not sure how secure the general claim is. This might just be because I haven’t thought much about it so let me know in the comments!

2. Rights need to be entrenched

There was some pushback, particularly from Conservatives at the conference, on a fairly general feeling that judicial review is the only way to ensure that laws comply with constitutionally-codified fundamental rights.

Incidentally, the very articulate Dominic Grieve, on the panel of the first plenary, was challenged on the Tories’ policy to abolish the Human Rights Act and their desire for “fewer rights, more wrongs” (whatever that means). He said that he wasn’t sure what it meant, which is understandable because it’s a pretty weird soundbite; alternatively his response was a semantic quibble to avoid the fact that his party has a far from perfect record with regards to civil liberties. (He had a good line: that Conservatives are just as prone to eroding human rights as anyone else, but that when they do so they get a voice in the back of their minds: your grandfather wouldn’t have approved). I realised half way through the afternoon that I was sitting next to him, we made eye contact and I like to think we rolled our eyes and scoffed in mutual understanding! I get the impression that he would like the Tories to make a much firmer commitment to fundamental freedoms than is the case at the moment.

Anyway – back to the substance of the point: although there’s quite a lot of debate even within the Conservative Party about this, they seem generally to be against giving “unelected judges” the power to strike down laws. Douglas Carswell MP, in the afternoon seminar I attended, argued that we should be increasing participation and devolution (all of which I agree with, if not his methods – referenda and direct democracy), rather than taking the power out of the hands of the people. But I don’t think this will really work, because aside from weakening governments through electoral reform (I had a good chat with ERS as well which helped to clear up STV vs AMS/AV+), protecting the rights of the minority from the tyranny (or parentalism) of the majority will always be a problem.

Douglas Carswell agreed with Weber’s view that judges, like all civil servants, are essentially self-interested individuals (see public choice theory) who have their own views and biases. But this concern doesn’t really seem to have stood up in reality; judges on constitutional courts have a pretty good record of doing the job they’re employed to do. Even the incredibly activist German Constitutional Court basically reflects underlying societal trends and protects human rights, and its strong activism is a reflection of the institutional framework initially established. Besides, Constitutional Court judges always face restrictions on their activity: public opinion, constitutional amendments (except – and it is a big except – the perpetual clauses of the German Basic Law, which frequently have a big impact), and the fact that, as Hamilton said, the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Plus, as Ely says, “the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves” (he doesn’t agree with that, but I can’t remember a better quote, and that book’s well worth reading for an alternate perspective anyway).

On the other hand, with Ely (and Douglas Carswell today) are those who variously say that judicial review is inherently undemocratic, open to abuse, and as Noah Webster eloquently puts it, the “assumption of a right to control the opinions of future generations, and to legislate for those over whom we have as little authority as we have over a nation in Asia”. But I think this rather misses the point: democracy is not just free elections and the ability to do anything you want, as the winner in those elections. Democracy includes a whole host of other values and freedoms (speech, expression, trial, etc). Even Dahl’s (1971) famous minimalist procedural definition of democracy as competition open to participation requires these basic rights to function properly. (And others, such as Linz, very explicitly include these rights in their definitions.)

Greater participation and better, more independent and more principled MPs would both help the situation, but an entrenched bill of rights would make much more of an impact.

3. The Ends Justify the Means (always, and even if they’re totally unrelated)

The Labour Minister Michael Wills bravely attended the afternoon seminar on Protecting Rights, which I appreciated even if might not have appeared so at the time! It lended weight to some of this I was reading a couple of days ago (via), even if that might be a bit strong in places. The strange cognitive dissonance of the  Minister, who seemed to be led by an almost blind acceptance of any erosion of civil liberty if it could have some perceived marginal benefit, was amazing, although maybe not surprising. We were told variously that we were against increasing voter participation, solving the problems of housing estates, and most bizarre of all that we were against free school meals (at which point I wanted to conduct a quick poll of the room). All of these problems – and so many more! – could be solved through the government’s planned data sharing laws. In any case, that’s not what most people thought, and we are all well off (apparently), so who are we to talk about anything. When we disagreed in the Q&As, we were misquoting him, so he was going to put his remarks on his website.

4. More data please!

The bloggers forum at 1pm-2pm was interesting, but one of the best points made was that a more proactive release of accessible, comparable data would be highly beneficial to the democratic process. The Power of Information Taskforce Report looks promising on that front, but I guess we’ll have to wait and see.

5. What next?

This was probably the biggest thing for me that the conference didn’t seem to strongly address, although perhaps there will be some good follow-up stuff and it should hopefully spark some debate anyway. In the opening plenary, one of the panelists voiced their support for a questionnaire (of the sort often used by civil society groups in the US) to be sent to all MPs, with a list of clear unambiguous questions, and then hold them to account before and after the election. I think this is an excellent idea, but it can’t really be done by existing human rights organisations like Amnesty and HRW, as they have to be nice to MPs in order to persuade them. Would it actually be that difficult to set up outside of existing structures?

Oh yeah, and Will Hutton got told off by Helena Kennedy (he was making weird generalisations about Muslims). Philip Pullman on the other hand was great! Watch it here (2nd plenary)