Restoring Liberties in 2007

Yesterday I wrote an extensive précis of Craig F Smith’s paper Taking Liberties, in which he explained how popular democracy has come to undermine freedom. This is a well-worn theme, notably with John Stuart Mill.

Today, I intend to outline a number of proposals Smith makes in this sequel paper, Restoring Liberties.

It should be noted that Smith proposes these as points for discussion rather than suggesting that any or all should or would be adopted. This is understandable. Untrammelled democracy is a seductive system, as Mill himself noted when he argued that “The disposition of mankind, whether as rulers or as fellow citizens, to impose their own opinions and inclinations as a rule of conduct on others…is hardly ever kept under restraint by anything but want of power.” I have lost count of the number of people I have spoken to who are openly willing to force people to behave in a manner that will supposedly save them from themselves. A universal smoking ban and forced exercise camps are just around the corner.

Nonetheless, with organisations such as Direct Democracy agitating for a constitutional convention, and even the Government suggesting that we might actually begin to consider looking into going about wondering how to get together and discuss drafting a written constitution for the United Kingdom, now seems a good time to set out some thoughts for how to limit the power of the state and strengthen the protection of the individual.

He begins with the most obvious: a written constitution. The very first thing that must appear in a written constitution are rules on how the constitution itself can be amended. This is not small matter, as our current (un-codified) constitution can be changed at will by a simple majority of the two houses of parliament – indeed, probably by a resolute simple majority of just the lower house. Regional devolution and Lords reform may both have been welcome, but they nonetheless represent enormous constitutional change, and yet were required to meet only the same level of assent as a change in the motoring laws. The same is true of every European treaty that has been signed. One may fail to rest, far from assured that Gordon Brown’s newly proposed constitutional changes will be similarly enacted by a simple majority of perhaps just one house.

Smith proposes that in future the constitution should require both houses of parliament to pass the change by a two-thirds majority before the proposal is put to a referendum, where again a two thirds majority must support the change. Thus constitutional tinkering will be kept to a minimum, partisan advantage will be prevented, and yet the constitution will be able to develop if change is widely desired.

In addition, he proposes that each House should have a Constitutional Committee to warn parliamentarians to reject unconstitutional law. These should be empowered to refer existing legislation to a Constitutional Court. The establishment of a Constitutional Court would require a fundamental renegotiation of Britain’s membership of the EU, however, as citizens would otherwise be subject to unconstitutional European legislation that the Court could not – under present arrangements – strike down.

The second principle is that there must be absolute limits to the power of the state over individuals. This effectively means a Bill of Rights – though Smith overlooks the fact that this shifts the balance within society from a freedom-based society, where everything is permitted unless it is specifically banned, to a rights-based society where one has rights because one is given them by the constitution. I would therefore finesse Smith’s Bill of Rights by suggesting that it should be a fundamental statement of existing freedoms, should note in the preamble that the list is inviolable but is not exhaustive, and should include as its first clause the principle outlined above that freedom is the norm from which legislation and even the convention deviates.

The specific freedoms Smith identifies (and in brackets my own proposed alternatives, as he uses some terms that are unnecessarily limited) are freedom of speech (expression), movement, religion (conscience, or belief) and property. To these I would add freedom of association. Smith also includes ancient rights such as Habeas Corpus, trial by jury and rules on double jeopardy.

Smith also includes a general point: that government should not restrict activities of individuals that do not harm others or that harm them in a way that is understood and accepted (to permit surgery, boxing and sado-masochism) or is easily avoided (so that non-smokers are understood to be able to leave the room, rather than insisting others not smoke).

The third principle is that the constitution should prevent the tyranny of the majority. While this seems obvious, this is where it gets tricky. Smith supports a second chamber to oversee and review the lower house and the executive and delay their actions. However, he opposes election, fearing that it would merely be another democratic house that would represent a majoritarian view. He therefore proposes some combination from among expert peers (selected by an independent selection committee), indirectly elected peers (nominated by local councils so that they had an indirect mandate but protected regional interests) and citizen-jurors (chosen by lot to serve, as is the case with jury duty).

He also supports the monarchy on the grounds that state occasions cannot be used to flatter politicians, there is an ultimate veto to tyranny and the armed forces are not subject to the Prime Minister. I might add that there is something inherently humbling in the fact that the very first thing a Prime Minister must do is kneel before The State and kiss hands. Finally, he suggests that some far-reaching legislation that might particularly disadvantage minorities should require a larger level of majority (others have suggested two thirds).

He does not propose a directly elected executive; he feels there are enough checks and balances. To this I might add that the popular mandate that a directly elected Chief Executive would have would appear to entrench executive power and majoritarianism rather than limit it. Smith appears to have temporarily overlooked the lesson of his own paper, that democracy can be used to argue that the executive has a mandate from the people.

Fourthly, as well as limits to what Government can do, there should also be limits to how much, so as to restrict the amount of legislation that activist politicians can create. Parliamentary terms should be fixed in length and individual laws should have “sunset clauses”.

Fifthly, government should be accountable. There should be a federal structure with clear delineation of responsibilities; parliamentary oversight should be strengthened (including proper confirmation hearings) and budgets should be transparent, including the publication of costs associated with every policy.

Interestingly, in his comment to my original piece, Bishop Hill suggested that Smith may have missed a trick in limiting parliament with a Bill of Rights. It would be better to define what government may do and – in a reverse of the logic that should apply to humans – everything should be forbidden that is not explicitly permitted. Government, unlike people, should not be born free, nor should it ever be set free.

Smith’s own verdict on his work is bleak: “The vested interests of those who hold power generally disincline them towards any reforms that will reduce their ability to act as they wish.” When he calls for a constitutional convention to discuss a liberal future, he seems to ignore the crucial lesson of his work: that people’s urge to reproach, interfere and dictate is the source of our problems, and is likely to shape a constitutional convention. Before we begin considering a such a convention, we first need to ask what kind of society we want. Do we really want to be free, if it means others are free too? Or would we rather retain the right to coerce others to make them live in a manner that we see fit, even if we must ourselves bear coercion when we find ourselves in the minority?

When the Americans drafted their constitution, they may have been naïve enough to think that it would not be twisted and mutilated by overweening centralists and activist politicians, but at least they knew what they wanted from society. They wanted the traditional British liberties which free born British men had won over centuries. I am not sure that modern Britains want the same.

Taking Liberties since 1797

I recently read the most fascinating article on how democracy undermines liberty.

Entitled Taking Liberties (it seems that nothing is original), it was written by Craig F. Smith, who was at the time a research fellow at the University of Glasgow and has since become a lecturer in the Department of Moral Philosophy at the University of St Andrews. By chance I happen to also be reading a short summary of the works of Adam Smith to which he provided commentary.

The article begins by reminding us of one simple fact that we long seem to have forgotten. Democracy is not an end in itself, but a tool we created to promote freedom. The aim of democracy was to give to the people the power to sack their rulers (we may now prefer to see them as our delegated decision-makers, even our administrators). Such power would act as a very effective check on tyranny, for the tyrant could be easily overthrown without the need to shed blood.

What democracy was never intended to convey was sovereignty. Democracy was basically a negative power: the right to take power away from a leader. But it quickly began to mutate into a positive power, conveying a right to act in the name of the people. In the UK, a sense of “popular sovereignty” merged with the traditional sovereign powers of the monarch – exercised through his prime minister since the early C18th – to give parliament unlimited powers. Note, for example, that in the UK parliament may amend the constitution by a simple majority in both houses – unlike in the US, where a two thirds majority is needed in both houses and three quarters of the individual state legislatures. This raises the very value of the constitution; what is a constitution if it is not distinct from the general nature of law.

The idea that democracy conveys sovereignty is anathema to liberty. Let us ignore, for the moment, the flaws inherent in our form of democracy, whereby a government can be elected with a strong majority in parliament based on just 37 per cent of the votes cast and only 22 per cent of the whole electorate, which means a tiny minority of the whole population. Let us instead assume that all governments rule with the support of a majority of the people. Even so, they enable the majority to impose their will on the minority. This creates two inherent problems. As This merely ensures that a series of temporary coalitions can form around individual views, constantly marginalising new minorities. They may be marginalised because of their race (Jews, blacks), their religion (Muslims, atheists), their lifestyle (smokers, hunters) or their affluence (the very poor and the very rich). But because democracy enables governments to please all of the people some of the time, they need never please all of the people all of the time. All governments need is for most of the people to be happy most of the time.

Democracies also lead to the rise of the professional politician. These days it is axiomatic that politicians need to devote all their time to their jobs, and so should be paid a handsome salary. Without payment, only the rich would be able to afford to devote time to public office, which would lead to plutocracy. Yet paying permanent politicians has its own dangers which are often overlooked. One is that they can afford to devote time to re-election while their opponents have a proper job to do. Another is that they have the time and incentive to shape legislation to guarantee their re-election. The result is a bias towards activism; politicians want to be seen to do things, and preferably to “bring home the bacon”, to gain benefits for their constituents at the expense of the nation as a whole.

The result is that democracy actually undermines freedom. The two most obvious examples of this are the “ban culture” which prevails in Westminster, and the ever-spiralling tax rate.

Laws exist to ban things. Assuming that one accepts as a fundamental principle (and it is worth noting that this is true in Britain and America, but not in France) that everything is permitted that is not explicitly banned, then laws cannot convey freedoms (unless they repeal existing bans). Thus legislative activism naturally leads to greater limits to freedom. As Liberal Democrat Home Affairs spokesperson Nick Clegg MP has noted in a number of speeches, the Blair government introduced on average one new law every day. There are a lot of things we have been banned from doing over the past 10 years.

This is especially problematic due to a common confusion between the legislative and administrative functions of the government. The recent smoking ban is an excellent example of this. The government has an administrative role (as master of the NHS) to promote public health and to keep costs under control. Unable to do this by administrative means, it uses legislation to ban the things that it cannot control (activities leading to lung-related illnesses). It cites health and safety legislation but ignores the freedom of individuals to enter and leave premises and to take or decline jobs. In effect, it uses its supposed sovereign power to forbid activity that is disapproves of for reasons of administrative convenience.

Other examples are more blatant; it is widely accepted that the ban on hunting with dogs was largely about playing to Labour’s gallery of class warriors and urban intellectuals.

The other inherent bias in the system is towards escalating taxation. Democracy enables the majority to impose their will on the minority. If the majority is poor and the minority rich, democracy acts as the great leveller (generally levelling down!), forcing the rich to give their money to the poor in direct transfers or by buying them services. As long as more people benefit than lose the measures will receive democratic support, even though the amount lost by the losers must equal the amount gained by the winners (in fact, the losers will lose more than the winners gain, as the inefficiencies of the system will lead to waste). Thus governments are inclined to continually raise taxation so as to dole out political favours to the masses at the expense of the productive few.

If this sounds doubtful, the following graph may be of note, demonstrating as it does the inexorable rise in Government expenditure in seven of the world’s leading democracies following the massive expansion of the franchise in the late C19th and early C20th.

The result is particularly hard to reverse because it generates a dependency culture, an addiction to the state as the solution to all our problems. “Liberty means responsibility,” observed George Bernard Shaw. “That is why most men dread it.” Throughout my lifetime every crisis – natural or man-made, financial, physical or moral – has been met with the demand that politicians take action. ‘Somebody should do something about this’ is a common cry among those who have lost the habit of asking ‘What can I do about this?’ So instead of buying our groceries in local shops we demand that regulators throttle the supermarkets; rather than choose a smoke-free pub we demand that smoking is banned in public places; rather than find a better job or undergo training we vote for tax-credits.

Democracy, as Churchill noted, “is the worst form of government except all the others”, and it is not my purpose nor is it Smith’s to argue that we should abandon democracy. But we need to remember that democracy exists to serve liberty – not vice versa. There is a reason why some of us consider ourselves Liberal Democrats. Of course there is a role for the state: classical liberalism is about limiting, not eliminating, it. We must uphold and even defend democracy, but we must be open minded about it, too, and ready to recognise its flaws. We have allowed democracy to run away with itself, and it has taken our freedom with it.

Craig F. Smith has some suggestions for how to restore liberty within democracy – though he admits that they may be pie-in-the-sky and will certainly not be easily accepted. However, there a more fundamental lesson to learn. We have given up too much of our freedom by perpetuating the myth that in choosing who leads us we invest them with unlimited power. We must limit the power of parliament and the executive and re-focus responsibility in society on individuals. Bernard Shaw was right that freedom worries people and places great responsibilities upon them. But I hope Thomas Jefferson spoke for us all when he stated that he “would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it.”

NOTE: The title of this article borrows from the film Taking Liberties since 1997, but refers to the first imposition of Income Tax in Great Britain.

Freedom of speech includes freedom to be wrong

Another day, another race row. Poor Channel 4 seems to be mired in bigotry at present. How will it cope?

After the furore of the Big Brother Race Row (which I feel now warrants the use of capital letters), it now appears that a contestant on Shipwrecked: Battle of the Islands has made some daft and probably offensive comments supporting slavery. She has also condemned fat people and called for a return to the British Empire, which suggests that she may not be all there, but it is the former comment – along with various anti-immigrant sentiments – that has caused the greatest uproar. In light of the BBRR, that is unsurprising.

Not having dipped my visual toes into this particular (cess-) pool of entertainment, I don’t know what she said, but if the transcript on BBC Online is accurate it looks like a tirade of idiocy rather than hate.

The question is, however, should Shipwrecked now be removed from the air? Should the offending contestant be throw off the island? Or reprimanded by producers and hauled into line? (Note that she already has been confronted by other contestants.)

I think not. As I commented before in another context, freedom of expression is most easily threatened when we seek to curtail expressions of opinion that are abhorrent or threaten our treasured beliefs. It is easy to rebuff the suggestion that Brian Haw or Behzti should be censored, but harder to defend David Irving or Vybz Kartel when they air their opinions. So too with the Shipwrecked contestant.

Appalling though we may feel her views are, I find more appalling the thought that media outlets might vet people against standards of opinion. It reminds me of an excellent posting by a fellow blogger (I’m afraid I forget who) arguing that while Simone Clarke’s membership of the British National Party might make most people’s stomach’s turn, it would be wrong to exclude her from employment with the English National Ballet merely because of her politics.

Let’s remember, this is supposed to be “reality TV”. Should we not allow these “real” opinions to be aired, taking the rough with the smooth, rather than hiding the seedy underbelly of British opinion away from the public eye? Is it not better that public debate be provoked rather than that it is avoided at all costs? I suspect that the contestant will learn more by witnessing the shock and opprobrium of her fellow islanders than she will by being hauled in front of the Channel 4 producers and given a dressing down.

Racism is a real part of British culture. It is also, let us be clear, a real part of all cultures. I have heard of no country where foreigners are universally trusted or welcomed. If we are to reduce its influence, or at least pull its sting, we need to witness it and admit the fact of it, and then to debate it – not just in the media, in politics and at great public meetings, but in pubs, at work and even around the camp fire as the sun sets over a glorious tropical beach.

Shut it, Ana! (You're only free if you're not wrong)

The greatest threats to freedom of speech do not come in edicts aimed at preventing public protests against our government or righteous expressions of belief.

This may seem surprising, at a time when our Government has banned public protests near parliament and frequently threatens laws that might criminalize criticism of religious beliefs or practices that are affronts to liberty. Yet the very fact that these are blatant abuses of power, flagrant violations of ancient rights, make them difficult and controversial. The majority of the public probably opposes bans on public protests – die-hard supporters of the Iraq War would undoubtedly argue that the freedom of a million protesters to march up Whitehall demanding that the war not be fought was the very freedom that they wanted to spread to Iraq.

The real threats to freedom of speech come not from bans of righteous and sympathetic causes such as public protest, investigative journalism or cultural debate. Rather, freedom of expression is undermined at its weakest point: the unsympathetic and quite controversial areas where people of conscience genuinely worry about threats to society and the suffering of individuals.

I have discussed before the importance of allowing holocaust deniers to argue their case even though it insults the victims of Nazism and might perhaps fuel neo-fascism. Another example of the trend is in the news today: a call for the banning of so called “Ana/Mia” websites aimed at sufferers of Anorexia and Bulimia.

There are many websites aimed at sufferers of Anorexia and Bulimia, from the informative through support sites through to group networks. It is these last that are causing concern. Sites using phrases like “I love you to the bones” are viewed by some as glorifying the disease; others enable sufferers to swap hints and tips. Many view these as encouraging the syndrome and thus inciting self-harm. The typical reaction is – as always – to ban them.

There are many problems involved here. The first is a straight-forward legal one; as long as no crime is being broken, the Government probably has no legal right to ban them. Some are being censored already, probably by internet service providers and search engines that have been leant on by pressure groups opposed to the sites (see, for example, the Pro Ana Mia Website & Forum).

But a far greater problem is the consequences of such a ban. If we create a society whereby whatever we consider to be abhorrent and disgusting we ban, we are in effect abrogating other people freedom to be different. If we ban even the discussion of such issues, we create a moralistic society that seeks to “look into men’s souls” and dictate to them what they may think, feel or say.

The danger here comes from the very fact that most of us probably sympathise with the emotions lying behind the calls for censorship. I am appalled that people might glorify self-harm, or terrorism or paedophilia or any number of other crimes. But there is a fundamental difference between discussing a subject – even approving of it – and practicing it, or inciting others to do so. Not being a lawyer I can only guess that incitement to cause self-harm is as much a crime as incitement to commit violence upon others. But swapping hints and tips or providing non-condemnatory support for sufferers is a far cry from encouraging others into the condition: teaching somebody to hotwire a car is not necessarily an incitement to steal one, even if most of us cannot imagine what use such a skill could be except for criminal purposes. Similarly, the Samaritans are not encouraging suicide by providing confidential help and support to those who feel suicidal.

There are plenty of other reasons why a ban would be both unwise and unenforceable. It would be difficult to draw the line between support and incitement, or between serious debate and malicious encouragement. It may be (indeed probably is) the case that those who glorify and encourage sufferers are themselves sufferers, so that we would be making double-victims of those who are already sick. Furthermore, we would drive them underground – the exchange of information would not be eliminated, but it would become clandestine, just as the exchange of child pornography is facilitated by the internet even though it is illegal (which argument should not be taken to suggest that the latter should therefore not be banned – the market clearly fuels the abuse of children which is in itself a crime). Moreover, as the internet is a space without borders (this being an innate part of its nature) a UK ban would merely see these sites migrate abroad. A ban would not work.

But the fact that a ban would not be effective is beside the point. We should not ban these sites because this would be the thin end of the wedge. What would follow would be an ever-more prescriptive approach to information, enforced by an ever-more powerful state censor. Where today we would ban sites for anorexics and drug users, tomorrow we would ban sites for fox hunters, and after them for smokers (as guilty of self-harm as any anorexic). Richard Dawkins would ban religions and others would ban gambling. We would be creating the paternalist-progressive state where individuals are protected from themselves and their own bad choices. Before it was over liberty would be curtailed as individuals were only able to discuss that which society viewed as wholesome. And after that we would have to do what was wholesome.

This is not just an absurd fantasy. German families in the 1930s were cajoled to go on country walks together in matching beige uniforms; homosexuality was illegal in Britain until 1967. This is not the society we want. What little benefit there is to sufferers of tragic illnesses will be as nothing compared to the loss of freedom which will follow. We must learn to allow people to practice – and to share – their freedom, even if they are free to be wrong.

David Irving’s freedom (and Roman Halter’s love of liberty)

After 13 months in prison, the holocaust denier David Irving is back in the UK, painting himself as the victim of an atrocity. The sad thing is that in this case he is telling the truth.

Atrocities are, of course, relative. 11 million people died in the Holocaust (or 14 million, or 20 million, or seven, depending on whom you ask) and by comparison 13 months in prison is small beer.

But there remains a qualitative link between banning a man’s freedom of speech (whether or not you think he is crazy or evil) and other, more savage, forms of oppression. The Nazis thought they were making the world a better place – for thoroughbred Aryans, at any rate. Undoubtedly a similar confidence filled those who criminalized Holocaust denial in Austria, Germany, France and elsewhere.

I can think of few justifications for these laws, most of them weak. That deniers are able to ferment fascism is unlikely; the most effective recruiting ground for the far right these days is anti-Muslim rhetoric, and it would take a truly masterful storyteller to tie Al Qaeda in with the Zionist Conspiracy. That it denigrates the memory of the dead or exacerbates the suffering of the living may be true, but this is no reason to ban free speech; we must all tolerate views that we dislike. As for the suggestion that these lies might confuse poor innocent minds that do not know better, this is both condescending and prevents people learning the most vital lesson of history, which is how to be discerning.

By comparison, I can think of a couple of very solid reasons for permitting free speech. The first is that the best way of exposing lies and mistakes is through refutation; by imprisoning those with whom we disagree we pass up an opportunity both to expose them and to sharpen our own arguments. We also give them a veneer of martyrdom. The second reason is that it makes a mockery of our exhortation to others to respect freedom of speech – either by allowing their own citizens to speak or at least not to fume when ours do so.

There are echoes here of the furore over the recent conference in Iran questioning the holocaust. We should have treated this with contempt, but by and large ignored it. It was a political stunt and by rising to the bait we played into the hands of Iranian hardliners. In the process we look like hypocrites. Earlier this year liberals across Europe were calling for tolerance of freedom of expression after a Danish newspaper published cartoons of the prophet Mohammed, and great amounts of angst ensued when Muslims across the world, including in Iran and the UK, were seen to argue that blasphemy was a sin punishable by death and that Western liberalism was mistaken, a contradiction of the word of God, or still worse a cynical excuse to justify attacks on their religion. We must prove at least this last concern wrong by applying freedom of speech impartially. If we defend one group’s right to offend Muslims we cannot then condemn another group for offending Jews.

Having said all this, my argument remains that of a remote observer. I am neither a Jew nor a Nazi nor a Muslim nor a cartoonist. I am passionate about freedom of speech but it is not my people’s suffering that is being denied by Mr. Irving. So if I have not convinced you, or if you are in the mood to be both moved and uplifted by somebody who did suffer first-hand, watch last night’s BBC 10 O’clock News and listen to Roman Halter. You will need to scroll 10 minutes and 40 seconds into the programme to hear this Jewish immigrant, who survived the concentration camps but saw his whole extended family wiped out, explain why Mr. Irving should be allowed to speak and publish, even if what he is saying is repulsive. In so doing, he speaks so lyrically of the freedom of expression that we all tend to take for granted that it is truly humbling.