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.