In 1943, Winston Churchill explained his decision to release a number of people detained without trial under wartime regulations. In a telegram to the Home Secretary, Churchill wrote that "The power of the Executive to cast a man into prison without formulating any charge known to the law and particularly to deny him the judgement of his peers – is, in the highest degree, odious and is the foundation of all totalitarian government." Any such power, Churchill continued, was a response to emergency "that should be yielded up, when and as, the emergency declines ... This is really the test of civilisation."
Churchill's telegram is cited in The Assault on Liberty, a feisty and refreshing attack on human-rights orthodoxy by Dominic Raab. A lawyer who was David Davis's chief of staff in last year's by-election when Davis resigned from the Tory front bench to fight 42-day detention, Raab argues that since Churchill's time freedom has been seriously eroded in Britain. He reserves his sharpest attacks for New Labour, which he accuses of mounting a "deliberate and concerted assault on liberty throughout the last decade" that is "without precedent – of a different order of magnitude to the ad hoc interventions that preceded it".
Raab's polemic is plainly partisan: the complaint of a right-wing liberal who prizes old-fashioned negative freedom over new-fangled rights. But the trend he rails against is real enough, and The Assault on Liberty should alert people on all points of the political spectrum to the threat to liberty in Britain today.
The arrest of shadow minister Damian Green at Westminster in November was a pantomimic affair, in which none of the culprits seemed to know what they were doing. Even so, the fact that such a farce could be staged demonstrates how far from traditional understandings of liberty under law Britain has strayed.
A far-reaching attack on freedom has been mounted as part of the misconceived " war on terror". Led by Tony Blair, who declared after the London bombings of July 2005 that "the rules of the game are changing", the political class as a whole has treated the legal procedures that have defined and protected freedom in the past with uncomprehending disdain.
Raab is definitely onto something. But has he diagnosed the causes of the decline of liberty correctly, and does he have any plausible remedy? A large part of his argument consists of a critique of the rights culture that has grown up in Britain over recent years. There can be no doubt that rights have been absurdly inflated – extended into areas where they should not apply, while being casually flouted when they involve crucial liberties.
But the reason is not only, or perhaps even mainly, the incursion into British law of the European Court of Human Rights, Raab's bête noire. Another important factor is the prevalence of American-style rights discourse. Issues that in the past were discussed in utilitarian terms of harm and benefit, or which were understood to involve conflicts among important values, are now routinely seen in terms of fundamental rights. The result has been the rise of a narrow, overweening type of legalism and the impoverishment of politics.
The fault lies largely with the political classes themselves, and here the weakness of Raab's remedy becomes painfully apparent. He proposes "a modern British Bill of Rights": a statement of basic liberties that would be entrenched in law and modifiable only by pre-determined procedures. Raab's proposal skirts over several problems, not all of which are obviously soluble.
Any Bill of Rights that is drawn up will inevitably reflect prevailing ideas, which include the inflated ideas about rights that Raab rails against. The clear danger is of embedding these essentially shallow, ephemeral notions in a constitutional settlement that will be all but unalterable. Even if this can be avoided, Raab's faith that the decline of liberty can be reversed by a Bill of Rights seems excessive.
Constitutional protection of rights has been far more developed in the US than in Britain. That did not stop the Bush administration suspending habeas corpus and sanctioning torture, and if these abuses are righted it will be as a result of a change in political leadership rather than anything the courts have done.
Ironically, while he astutely criticises the rise of a legalistic culture of rights, Raab seems to believe we can extricate ourselves from our present predicament through another exercise in legalism. Yet when much of the British political class no longer cares about freedom and barely understands what it means, a Bill of Rights can hardly be expected to turn the tide. It was not law or rights that Churchill invoked when dismantling wartime infringements of freedom. It was civilisation, which requires a measured restraint in the use of power on the part of our rulers without which bills of rights are not much more than scraps of paper.
John Gray's 'Gray's Anatomy: Selected Writings' will be published by Allen Lane in MarchReuse content