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15th Feb ruary 2006

C ivillib erties:Resto rin g freed o m s an d

en tren ch in g lib erty
Sp eech b y C hris H u h n e M P

For m uch ofthe 20th century,the politicalbattle w as betw een R ight and Left;and
the battle w as over econom ic and socialissues. Broadly speaking,the Left –
Labour – w anted an increasing role for the state;the R ight – the C onservatives –
w anted a sm aller role for the state.

W e LiberalD em ocrats have alw ays thought that,just as im portant as the question
ofthe size of the state w as the question ofhow it could be m ade properly
accountable. T hat w as an issue w hich our rivals on the Left – Labour – com pletely
ignored as they proceeded happily to expand the pow ers ofthe state follow ing the
precept ‘T he m an in W hitehallknow s best’.

W e have spent m uch ofthe post-w ar period trying to cope w ith the disastrous
consequences. N ationalisation – Labour’s panacea im m ediately after the w ar –
has proved a failure,and a costly failure at that. T op-dow n m anagem ent ofthe
public services – the N H S and education – has also proved a costly failure.

Y et the Blair governm ent continues to centralize pow er,especially in education,

as the recent W hite Paper show s. Labour stillbelieves that the m an in W hitehall
know s best. W e LiberalD em ocrats do not. W e believe that realliberty m eans
pow er cut into pieces. T hat is a key reason w hy w e favour decentralization and
the devolution of pow er to localcom m unities.

But the old battle betw een the individualand the state is taking on a new aspect in
our troubled 21st century. Faced w ith the threat ofterrorism ,issues ofcivil
liberties are com ing to the fore. Indeed,I believe that one ofthe crucialdivisions
ofopinion in Britain in the future w illbe betw een the party of civilliberties and
the party ofauthoritarianism . W e ofcourse are alw ays to be found on the side of

I am becom ing increasingly w orried by the tone ofthe com m ents m ade by
m em bers ofthis governm ent,and by T ony Blair in particular. T he Prim e M inister
seem s to regard the judiciary as an arm ofgovernm ent,there to do its bidding. A ll
the safeguards w hich have for centuries helped to secure the rule oflaw – trialby
jury,the presum ption of innocence,even habeas corpus itself,w hich tells us that
no person should be detained w ithout being charged – allthese safeguards have

been attacked by the Prim e M inister as im pedim ents to the fight against terrorism
and crim e. Indeed,M r. Blair som etim es attacks the judges for having the
im pertinence to find som eone innocent w hom he,as Prim e M inister,is
convinced is guilty.

It is tim e to restate som e basic and fundam entaltruths. O ur legalsystem is based

upon the presum ption ofinnocence. G uilt m ust be proved before a person m ust
be punished. T he onus is alw ays on the prosecution,not the defence,to prove its
case. W e have alw ays believed that it is better that the guilty should go free than
that the innocent should be punished. Further,anyone accused ofa crim e has the
right to be judged by his fellow -citizens on a jury. A nd no one should be detained
for m ore than a very short period w ithout being charged.

O ur judges are there not to do the bidding of the governm ent,but to interpret the
law . It is therefore utterly w rong for m inisters to attack judges w hose decisions
they do not like. Indeed,som e rem arks by m inisters recently seem ,as the new
Lord C hiefJustice has suggested,to have as their purpose the intim idation of
judges. I do not believe,how ever,that our judges w illbe intim idated. T hey are
m ade of sterner stuff. T hey w illcontinue to apply the law w ithout fear or favour.
T he day w hen they cease to do so,w hen they do the governm ent’s bidding w ould
be a sad day for this country. It w ould be the day w hen w e crossed the line
dividing a free society from a totalitarian state.

Som e say that the danger of terrorism provides a justification to sw eep aw ay all
these safeguards. M inisters tellus w ith O rw ellian double think that w e need to
sacrifice som e part ofour freedom s to ensure our freedom from terrorist attack.
T ony Blair constantly refers to the right to life as “the m ost basic right ofall” as if
every politicalliberty has in the end to be sacrificed to keep us physically safe. But
this doctrine is based on a fantasy. W e can never be com pletely safe. T here cannot
be a risk free w orld. W e have to acknow ledge that it is im possible for the
G overnm ent to m onitor and controlthe actions ofeveryone capable ofharm ing
others. Even ifit could,the result w ould be a nightm are society devoid ofallthe
freedom s that m ark our civilization as unique and as w orth defending. A s
Benjam in Franklin said,any free people w ho w ould give up an essentialliberty for
tem porary security deserve neither liberty nor security.

N or w ould past generations ofBritish people be im pressed by any such calculus.

T he Prim e M inister tells us that w e m ust lay dow n our freedom s for our lives,but
perhaps he should rem em ber allthose people in past generations w ho laid dow n
their lives for our freedom s.

Even during w artim e,w e w ere m uch m ore carefulofcivilliberties than our
G overnm ent is today. It is true that in 1940,w hen invasion threatened
im m inently,w e introduced R egulation 18B,allow ing the governm ent to detain
anyone w hom it believed to be a danger to the nationalinterest. But,there w as an
appealto the courts from those so detained,and,w hen the im m ediate danger of

invasion w as over,in 1943,w e released the detainees,w ho included Britain’s
fascist leaders,such as Sir O sw ald M osley.

W inston C hurchillw as deeply unhappy about R egulation 18B even in w artim e.

T o detain a m an at the w ish of the executive w as,he said,`In the highest degree
odious’ and the foundation ofalltotalitarian regim es,w hether C om m unist or
N ationalSocialist. W e have never sought to introduce pow ers ofdetention
w ithout trialoutside N orthern Ireland under peacetim e conditions;and w hen in
N orthern Ireland,in 1971,the H eath governm ent introduced internm ent,it
proved a ghastly failure,serving only to convince the C atholic population that the
British governm ent w as its enem y. Internm ent w as the best recruiting sergeant
that the IR A ever had.

W e LiberalD em ocrats agree w ith C hurchill,w ho w as ofcourse a m em ber ofa

Liberalcabinet for m ore than a decade. D etention w ithout trialis indeed `in the
highest degree odious’. W hat a pity that m odern C onservatives ignore C hurchill’s
w ords. For the C onservative party sounds an uncertain trum pet on civilliberties.
N ot only w as it a C onservative governm ent that backed internm ent,but it is the
C onservatives w ho have com prom ised w ith Labour on the m axim um period of
detention under the T errorism bill.

T he present situation is a m axim um period of detention of14 days,stillfar longer

than the traditionalstrictures ofhabeas corpus. T hat is a sustainable period in
other countries facing sim ilar threats,such as A ustralia,G erm any and France.
T here is nothing to stop the authorities bringing charges and asking a judge for
the accused to be rem anded in custody. H ow ever,the opening bid from the
Prim e M inister w as for 90 days w ithout trialor charge,and far from resisting any
unnecessary extension the C onservatives decided that they w ould split the
difference on 28 days.

But there are m any other exam ples ofhow unreliable an ally ofliberty the
C onservative party has becom e. U nder M ichaelH ow ard’s leadership,the party
had a three line w hip in favour ofidentity cards. A nd then under D avid D avies’s
spokesm anship,it w as against them . O n police pow ers,the C onservatives are
generally to be bound on the side of extension rather than ofsafeguards.

For the C onservatives vie w ith Labour for the votes ofauthoritarian parts of our
society. T hose w ho care first and forem ost for an ordered society are never too
fussy w ho is hurt in the process,untilthey them selves find their freedom s at risk.

Som e say that w e as a party spend too m uch tim e defending civilliberties,and
that w hat really m atters to the voters are the bread and butter issues. I do not
agree. Ifw e as LiberalD em ocrats did not speak up for civilliberties,w ho w ould?
A t present w e are called upon to defend the civilliberties ofvery sm alland
unpopular m inorities,those accused of terrorist crim es,those seeking asylum ,
those seeking to avoid deportation.

It is w orth rem em bering,how ever,that allofus are m inorities at one tim e or
another. A llofus could be w rongly accused ofa crim e w hich w e did not com m it.
A llofus could be subject to som e police m istake. T he police are,after all,hum an
and w e know from the case ofM r M enezes that m istakes ofidentity can have the
m ost terrible consequences. A llofus could express view s or do things w hich the
governm ent ofthe day does not like. W e allofus som etim es do unpopular things
or utter unpopular thoughts. W e allofus need the protection w hich the rule of
law gives us.

T hat is w hy a key task for our party is to oppose the illiberalm easures that this
G overnm ent is bringing forw ard,notably at present the R acialand R eligious
H atred Billchilling freedom ofspeech,ID cards spreading the surveillance
society,and the T errorism billw ith further extensions to detention w ithout trial
or charge. T here m ust be no com prom ise on torture and cruel,inhum an and
degrading treatm ent of suspects or on com plicity w ith ‘extraordinary rendition’
and deportations for torture and m istreatm ent. H um an rights do not stop at
Britain’s frontiers.

W e m ust also resist the G overnm ent’s proposed restrictions on jury trial,w here
the rum our is that they m ay shortly be reintroduced in the Lords. T here is no case
w hatsoever for rem oving juries in trials such as serious fraud w here the
reputations and freedom ofthe defendants are at stake. T he argum ent that juries
cannot understand com plex cases has been com prehensively disproved in the
series ofsuccessfulprosecutions launched by Elliot Spitzer against W allStreet
w hite collar crim e in the U nited States. In M arch last year,a jury convicted Bernie
Ebbers and ScottSullivan ofan $11 billion accounting fraud underlying the
collapse ofW orldC om . A nother jury convicted D ennis K ozlow skiand M ark
Sw artz oftaking $150 m illion from T yco. A n A labam a jury convicted R ichard
Scrushy of$2.7 billion accounting fraud at H ealthSouth. O ver the last year,six
m ajor convictions for serious fraud have been secured in the U SA allofthem
before juries.

O ur ow n Serious Fraud O ffice should stop trying to blam e others for its ow n
incapacity to sim plify cases,charges and evidence. Even on the SFO ’s ow n figures,
juries w ere responsible in 2004-5 for only 4 acquittals against 17 other acquittals
by order ofthe judge. Juries are a vitalbulw ark ofthe British system of justice,
and should rem ain so.

Sadly,there is also a substantialagenda ofnecessary repeals ofilliberalm easures.

Labour has a habit ofusing legislation as a press release to send outsignals to
actualor potentialLabour constituencies ofinterest. O ne ofthe techniques ofthis
governm ent has been to present each erosion ofliberties as a sm alland
insignificant step needed to achieve the w ider good ofsafety and security. But the
cum ulative effect has turned into a serious slide tow ards authoritarianism . W e
need to rollback previous incursions into traditionalcivilliberties precisely

because they have reached such a point of collective dam age. T hese w ould be m y
priorities for repealand reform .

W e m ust press for the repealof section 44 ofthe T errorism A ct 2000,w hich is
being used to harass dem onstrators (including W alter W olfgang at the Labour
party conference). W e m ust stop the use ofA ntiSocialBehaviour O rders to
crim inalise protest. W e m ust end the ludicrous restrictions on the right to protest
near parliam ent,under w hich M aya Evans w as outrageously prosecuted for
reading a list ofthe British w ar dead before the C enotaph. W e m ust say no to
blanket curfew s that treat allyoungsters as crim inals. W e m ust rollback
restrictions on the rights of defendants to consult law yers. W e m ust press for
reform ofthe O fficialSecrets A ct to prevent its abuse to cover up activities that
should properly fallunder public scrutiny. A nd w e m ust reintroduce the
distinction betw een arrestable and non-arrestable offences destroyed in the
Serious O rganised C rim e and Police A ct,allow ing the m ost m inor offence as a
pretext to collect D N A or sanction arrest. T his is frankly as essentialfor the
relationship betw een the police and m inority com m unities as it is for civil
liberties. T he reputation ofthe British police lies crucially on their reputation for
the proportionate use oftheir pow ers,and w e should not put them in a position
w here they can be tarred w ith the accusation that they use disproportionate
pow er. T his is by no m eans a sm allprogram m e.

Liberals m ust also m ake the case strongly for a w ider underpinning to our hum an
rights. In 1998,Parliam ent passed the H um an R ights A ct giving the courts greater
pow ers to defend hum an rights. Som e in the governm ent and som e C onservatives
now regret this and w ish to curtailthe protection w hich the A ct provides. W e
LiberalD em ocrats do not agree. W e believe that everyone in this country needs
the protection w hich the H um an R ights A ct provides. W e do so for tw o reasons.

T he first reason is that w e live in an increasingly diverse society,w hich is both

m ulticulturaland m ultidenom inational. W e w elcom e this. It is high tim e that
other politicians as w ellas those in our party spoke of the benefits w hich w e have
derived from im m igrants and asylum -seekers. Justtry to im agine w hat the N H S
w ould be like if w e had notencouraged im m igration!O ur retailsector w ould be
dom inated by inconvenient stores.

T here is,how ever,m uch less ofa m oralconsensus than there w as in,for exam ple,
the 1950s. A diverse society m eans a greater diversity ofview s. T hat is a good
thing,not bad. T he 1950s w as,in m any w ays,a decade ofstifling conform ity. But,
in a diverse society,w e need to ensure that those w ho express unpopular view s or
follow unpopular courses ofaction,are given proper protection by the law . W e
need stronger protection against intolerance.

T he second reason for the H um an R ights A ct is that w e live under an

unprotected constitution. A governm ent,supported as the present governm ent is
by just 35% ofthe voters – a governm ent,therefore,w hich 65% voted against –

can rule unchecked by the H ouse ofC om m ons,by an unelected H ouse ofLords,
and unchecked by strong localgovernm ent institutions. W e badly need a
counterbalance to w hat Lord H ailsham once called an `elective dictatorship’. T he
sm aller the share ofthe vote that sustains that parliam entary m ajority,the greater
are the risks to liberty,and the stronger the case for safeguards. A nd this
governm ent has the sm allest share ofthe vote ofany m ajority governm ent since
the first reform act in 1832.

W e LiberalD em ocrats seek that counterbalance in a fair electoralsystem for the

H ouse ofC om m ons in w hich every vote counts equally w herever you live, and
w here allm inorities are fairly represented. W e seek it in an elected second
cham ber able genuinely to check the governm ent ofthe day,in strong local
institutions,and in a w ritten constitution that guarantees the integrity ofeach of
the elem ents w ithin the politicalsystem . But,untilw e secure these valuable
reform s,w e m ust not w eaken the only realcheck that w e have on an authoritarian
governm ent,w hich is the judiciary. N ever have w e needed the rule oflaw m ore
than w e do today.