Straw should not apologise too quickly for New Labour’s civil liberties policies

27 October 2010 by Adam Wagner

Jack Straw, the former New Labour Justice Secretary, has marked the 10th anniversary of the passing into law of the Human Rights Act with an article in the Guardian.

There are two points of interest from the article. The first is that, by my reading at least, the article runs close to an apology for the previous government’s much-criticised anti-terrorism policies. Straw, who amongst other front line roles was Home Secretary from 1997 to 2001 and Justice Secretary from 2007 to 2010, says “It is hard to exaggerate the pressures that those with responsibility encounter when a population, or part of it, is scared.” This meant that the government were under pressure and “sometimes the same people who might have been seeking greater controls on the intelligence services will want to know why we didn’t have more intelligence”.

The new government has made much of its predecessor’s record on civil liberties. Within days of coming to power, it promised “a full programme of measures to reverse the substantial erosion of civil liberties under the Labour Government and roll back state intrusion“. The view that New Labour was bad for civil liberties, which is becoming something of an orthodoxy, is clearly hurting figures such as Straw who were central in introducing the offending policies.

But Straw need not apologise too quickly, for three reasons. First, he is right that the political environment, at least in the first half of the last decade, was defined by the threat of terrorism. This was not mere scaremongering: it became real on 7/7/05 to terrible effect, something we are now being reminded of by the 7/7 inquest. In that febrile atmosphere it is unsurprising, and perhaps understandable, that security policies eroded civil liberties. Some may also have gone too far, as Straw intimates, but individual rights must always be balanced against national security and the public interest, as is made explicitly clear in the wording of the qualified European Convention rights.

Secondly, the fact remains that the New Labour government introduced a series of laws which greatly increased civil liberties protection in the UK: the Human Rights Act 1998, the Data Protection Act 1998 and the Freedom of Information Act 2000. Until the new government has made equivalent strides it cannot in good faith write off the achievements of its predecessors. It is fortunate that the three interlinked pieces of legislation were enacted before 9/11, as without these protections the civil liberties landscape may have looked much worse during the age of terrorism. As it turned out, the courts had been given a sharp set of tools to use against offending policies, and they are becoming increasingly emboldened to use them.

Thirdly, the new government’s record on civil liberties is as yet unclear. As I have written before, the age of terrorism has all but ended, for now at least, and as such many of the security policies which the coalition have rolled back with great fanfare are redundant anyway, so they amount to easy wins rather than hard choices. The truer test will be its approach to unpopular civil liberties issues, such as allowing prisoners to vote, a longstanding imperative from the European Court of Human Rights which has yet to be implemented. Moreover, some of the policies, such as the retention of DNA evidence and police stop and search powers, have been changed not by choice but because of criticism from the European Court of Human Rights, the decisions of which the UK government is legally obliged to follow.

And it is not yet clear what the new government will do in relation to some of the most controversial anti-terrorism powers: apparently control orders may survive the current counter-terrorism review, and regarding the use of secret evidence – which is causing the government regular problems in the civil courts – the Prime Minister has announced that it will publish a green paper on how such evidence is to be treated in the full range of judicial proceedings, whilst addressing the “concerns of allies”. This sounds ominous for open justice. So watch this space.

It is arguable that the pressures of terrorism, which are Straw says are “hard to exaggerate”, have an equivalent for today’s government: namely, the economic collapse. The financial turmoil of 2007 and 2008 may in the future be seen as just as era-defining as the terrorism of 2001. And the current government’s response to its own crisis will arguably be just as important for civil liberties. Just as anti-terrorism policies eroded rights to privacy and fair trial, the public sector cuts will affect rights to family life and the peaceful enjoyment of property, amongst others. It may be that in 10 years time, George Osborne will respond to criticisms of his own government on human rights in much the same way as Straw, trying to explain the effect of “pressure” to reform.

A second point of interest is that Straw goes on to suggest reasons why a human rights culture has not become “embedded” in the UK. In other words, the longstanding puzzle of why the HRA is apparently unpopular. Notwithstanding that the act’s unpopularity may be more myth than reality, Straw blames media bias and the “absence of understanding among the wider public that with rights go responsibilities”. He argues for a “statement of responsibilities”, which is also the current government’s preferred plan.

I am doubtful that such a statement is necessary or in practice will make any difference to how the courts approach the enforcement of European Convention rights. Under the convention, the government is at liberty to calibrate its policies – for example, who gets a council house – according to whatever criteria it chooses, as long as the criteria are a proportionate means of pursuing a legitimate aim. It could (and does) decide that if a person has not been a positive contributor to society, their social benefits will be reduced. This is not a problem under current human rights law. What is a problem, and would remain so regardless of any statement of responsibilities, is if government policy sought to derogate from rights which although unpopular, are absolute (that is, they cannot be breached under any circumstances), such as the prohibition on torture. No list of responsibilities will make it lawful to breach this right under any circumstances. So those who argue terrorist suspects should be sent back to Pakistan to be ill-treated because they are bad people will have to remain unsatisfied by the act.

So, Straw should not be too quick to respond to criticism of human rights law or the record of his government. In any event, there is still much to play for in respect of the new one and this should now be the strong focus of the opposition.

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Read more

• The future of human rights, a decade on
• The future of the Human Rights Act, a reminder
• End of the age of terrorism for human rights campaigners