David Cameron: ‘On Liberty’
‘I never meant to say that the Conservatives are generally stupid. I meant to say that stupid people are generally Conservative. I believe that is so obviously and universally admitted a principle that I hardly think any gentleman will deny it.’
But Mill was of the Liberal persuasion, and he wrote ‘On Liberty’ at a time when Bentham was on the ascendancy, with his arguments for the ‘general good’ and the primacy of the ‘good of society’. It may seem right for the state to control public worship, to forbid heresy and blasphemy, or to criminalise adultery or homosexuality, all in the name of ‘public morality’ which exists for the ‘general good’. If individual freedom suffers, then that, according to the utilitarians, is the price we must pay.
Mill was of the view that the law does not exist to uphold majority morality against the individual, but to protect the individual against tyranny, including the ‘tyranny of the majority’. Of course, if the exercise of individual freedom threatens harm to others, it is legitimate to curtail it, for in such circumstances one person's gain in freedom is another person's loss of it. But when there is no proof of harm to another, the law must protect the individual's right to act and speak as he chooses.
Scruton notes that this principle has a profound significance: It is saying that the purpose of law is not to uphold the will of the majority, or to impose the will of the sovereign, but to protect the will of the individual. It is the legal expression of the ‘sovereignty of the individual’. The problem lies in the concept of harm. How can one prove that one person's action does not harm another? How can one prove, for example, that other people are not harmed by my public criticism of their religious beliefs - beliefs on which they depend for their peace of mind and emotional stability? How can one prove that consensual sex between two adults leaves the rest of society unaffected, when so much of life's meaning seems to rest on the assumption of shared sexual norms? These questions are as significant for us as they were for Mill; the difference is that radical Islam has now replaced Scottish Puritanism as the enemy of liberal values.
Mill's defence of liberty, which was enunciated with great force and seeming clarity, soon followed the path taken by his defence of utilitarianism, and died the death of a thousand qualifications. ‘On Liberty’ sees individual freedom as the aim of government, whose business is to reconcile one person's freedom with his neighbour's. ‘The Principles of Political Economy’ by contrast, while pretending to be a popular exposition of Adam Smith, accords extensive powers of social engineering to the state, and develops a socialist vision of the economy, with a constitutional role for trade unions, and extensive provisions for social security and welfare. The book is, in fact, a concealed socialist tract. While ‘On Liberty’ belongs to the 18th-century tradition that we know as classical liberalism, ‘Principles’ is an example of liberalism in its more modern sense.
Mill's hostility to privilege, to landed property, and to inheritance of property had implications which he seemed unwilling or unable to work out. His argument that all property should be confiscated by the state on death, and redistributed according to its own greater wisdom, has the implication that the state, rather than the family, is to be treated as the basic unit of society - the true arbiter of our destiny, and the thing to which everything is owed. The argument makes all property a temporary lease from the state, and also ensures that the state is the greatest spender, and the one least bound by the sense of responsibility to heirs and neighbours. It is, in short, a recipe for the disaster that we have seen in the Communist and Socialist systems, and it is a sign of Mill's failure of imagination that, unlike Smith, he did not foresee the likely results of his favoured policies.
Taking ‘On Liberty’ and ‘Principles’ together we find, in fact, a premonition of much that Conservatives object to in the modern liberal worldview. The ‘harm’ doctrine of ‘On Liberty’ has been used again and again to subvert those aspects of law which are founded not in policy but in our inherited sense of the sacred and the prohibited. Hence this doctrine has made it impossible for the law to protect the core institutions of society, namely marriage and the family, from the sexual predators. Meanwhile, the statist morality of ‘Principles’ has flowed into the moral vacuum, so that the very same law that refuses to intervene to protect children from pornography will insist that every aspect of our lives be governed by regulations that put the state in charge.
Mill never understood that wisdom is deeper and rarer than rational thought. He never understood that the intellect, which flies so easily to its conclusions, relies on something else for its premises. Those Conservatives who upheld what Mill called ‘the despotism of custom’ against the ‘experiments in living’ advocated in ‘On Liberty’ were not stupid simply because they recognised the limits of the human intellect. They were, on the contrary, aware that freedom and custom are mutually dependent, and that to free oneself from moral norms is to surrender to the state. For only the state can manage the ensuing disaster.
For the sake of retaining the archive, Cranmer reproduces below Mr Cameron’s dialogue ‘On Liberty’ with Henry Porter. Cranmer makes no apology for the length, for Mr Cameron will one day be Prime Minister, and such writings evidently reveal the man’s core beliefs:
Last week the House of Lords ruled that 18-hour curfews as part of the control-order regime were illegal under article five of the Human Rights Act. In the previous week, the Home Secretary, Jacqui Smith, announced the government planned to extend pre-trial detention in terror cases and Gordon Brown made a speech setting out his rather odd vision of liberty in a 21st-century democracy.
The reason that liberty and rights are so much in the news these days is plain: Labour has presented incontestably the most serious challenge to our unwritten constitution ever known in peacetime. In the past 10 years we have seen an attack on jury trial; the introduction of hearsay evidence in cases that may result in jail sentences; people being denied the right to defend themselves as they see fit or even to know the evidence against them; punishment without a court determining the law has been broken; an increase in the state's arbitrary powers; and the building of a surveillance society with the mass interception of communications, the ID card database, the children's database and the recording of road journeys.
There is much more. I think you will agree that it is a long and depressing list, yet in the nearly two years since you became leader of the Conservatives you have seemed unwilling to attack the government on the totality of its record. Is this because you do not feel the issue of liberty is as important as the work you have done in refocusing Conservative policy, or is it that you secretly approve of some of the measures and believe you may need them if you win power? Is it fair to say that you could have done more to draw attention to what Labour has been doing?
The great irony of the last decade is that as soon as Tony Blair brought in the Human Rights Act he began to chip away at such basic rights as the freedom of speech, assembly and protest. It became clear that the HRA offered no protection against an ambitious government like his, or indeed Gordon Brown's. You have suggested replacing the HRA with a British Bill of Rights, which would put certain rights beyond the reach of Parliament.
That's a welcome notion to me. But how will you square this with parliamentary sovereignty and the worry about giving more power to unelected judges? And how can Britain remain a signatory of the European Convention on Human Rights at the same time as abandoning the HRA?
Is your primary motive in all this to create the conditions where terror suspects who are foreign nationals may be deported to countries where they risk being tortured? Your colleague Ken Clarke has said these legal difficulties are irreconcilable and that the idea of a British Bill of Rights is tainted by xenophobia. How do you respond to this criticism and claims that you are playing to the tabloids?
You talk about a Bill of Rights and Responsibilities. This echo of Brown's phrase of 'rights and duties' makes me worry that you are buying into the Labour view that a guarantee of rights can be given only if citizens accept new obligations to one another and the state. Surely our duties as British citizens are already defined by common law and hundreds of statutes. What right does any government have to ask us for more?
Over the past two years I have written some 50 columns on rights and liberty without ever having to scratch around for material. Not a week seems to go by without some disastrous new measure being announced. Last month Jacqui Smith decreed that all phone records would be open to inspection by hundreds of government agencies, without the knowledge of subscribers. It seems extraordinary that this intrusive measure barely raised a murmur from the Conservative party and yet this is the kind of power that we associate with the former Soviet Union.
The government seems to demand more and more information about each one of us; and, as we offer it up, we lose not only our privacy but also a degree of power. A traditional Conservative would say that is neither good for the state nor the individual. Does the extent of surveillance in Britain and its possible abuse worry you as much as it does me?
The philosopher AC Grayling wrote that the litmus test of liberty is the ID card. The shadow home secretary, David Davis, agrees and has made a welcome stand against the scheme, explaining that not only will it be vastly expensive but that it is unlikely to make us any safer from terrorism or identity theft. People are coming round to his view. Nick Clegg, a candidate in the Lib Dem leadership contest, says that he would rather face court proceedings than register for an ID card. Battling Boris Johnson has said something similar. Would you go as far as Mr Clegg and your London mayoral candidate?
Thanks for the opportunity. Apart from the specific ID card point, which I will answer at the end, I see three main questions that should be addressed: has the Conservative party under my leadership been rigorous enough in our defence of liberty? How will our new Bill of Rights policy work? And what is the philosophical thread that links our approach to these vital issues? (Incidentally, I agree with you about the PM's speech: quoting Locke, de Tocqueville and Mill doesn't mean you have an instinctive feel for liberty. Indeed, Brown's whole belief in the wisdom of big government leads me to believe that he has no feel for liberty at all. And given his seeming lack of concern about extending detention without charge even beyond 28 days, presumably 'the next chapter in British liberty' he so badly wants to write is: 'The End'.)
Anyway, back to the questions. I don't accept the charge that we haven't stood up for liberty. Under my leadership we have attacked ID cards at every turn; won a victory in the Religious Hatred proposals; and refused to budge one inch over jury trials.
On the Bill of Rights, I agree with you that the Human Rights Act has failed - not just because it's not saved jury trials or other British liberties, but because it has made the situation around deporting foreign nationals more difficult. The point of a British Bill of Rights is to write a bill that is in tune with British traditions about liberty, rather than simply importing the ECHR lock, stock and barrel. The result is that we could be given greater 'margin of appreciation' from the judges in Strasbourg.
On the issue of deportations, I will cut to the chase. I have long been worried about the 'preachers of hate' and other extremists we have harboured in Britain. We should never have let them in: the 'Londonistan' approach of having them here so they could be watched over was a historic mistake.
Of course I don't want anyone sent home to certain torture, but I fail to see why a British Home Secretary is now not allowed to weigh up the risk to the individual if they are deported, against the risk to us if they stay. Before the Chahal judgment in 1996 that is exactly what was allowed to happen. Were we any less free then? I don't think so.
Does that fly in the face of truly 'universal human rights'? Perhaps, but I have always believed that a country has the right to say 'no' to giving someone sanctuary if they pose a risk to your country. Added to that we should respect the fact that our parliamentary democracy has helped to defend liberty.
What ties all this together? I don't accept that the threats we face today are no different to those we have faced in the past. Suicide bombers threatening mass casualties with an active desire to martyr themselves in the process are, quite frankly, a new departure in the UK.
But what we need is what I call the hard-nosed defence of liberty rather than ineffective authoritarianism.
What does that actually mean? It means action to throw out foreign nationals that threaten our freedom and safety, as set out above. And it means we need to do all we can to catch, convict and prosecute those who mean to do us harm. So, 'yes' to new offences like acts preparatory to terrorism, 'yes' to a review of some police powers so they can meet these new threats and a big 'yes' to using intercept evidence in court so we can secure more convictions.
But it means 'no' to longer periods of detention without charge, unless new and compelling evidence can be produced, and a big 'no' to ID cards, which represent a huge incursion of the state into private life with absolutely no guarantee that they will help tackle terrorism, illegal immigration or indeed anything else.
Would I break the law by not registering for one? No. Because I believe that in a democracy law-makers should not be law-breakers and if Labour manages to introduce this giant plastic poll tax I will take great pleasure in using their folly to help win an election and, in the finest traditions of the Conservative party, help 'set the people free' by repealing it.
Does all that help?
Thank you for that. Yes, up to a point it does help.
Are you accusing the government of failing in its duty by allowing 'the preachers of hate' to continue to operate in this country? There is a freedom-of-speech issue in all this. With your previous remarks about the words of some rap artists and the aggressive campaigning of the Hizb-ut-Tahrir party, I wonder if you're planning to add to the list of speech crimes. If you ban Hizb-ut-Tahrir, then what about the BNP?
I wish you would be more passionate on the subject of rights and liberty. They should not be the political issue they have become, but rather the unquestioned context of our politics. We need you to say that.
Labour's campaign against individual liberty has ranged far. There are about 20 acts that chip away at individual liberty, while some 3,000 new offences have been created. Thousands of innocent people have their DNA taken, sometimes with legal force. The government has access to everyone's phone records. Arbitrary powers of dispersal and search are contained in the antisocial and terror legislation. Public-order laws have been used to limit free expression and protest.
The liberties attacked in the last decade are what an older generation fought for. I agree that the state has a duty to protect its citizens, but terrorism has been used as an excuse to reduce liberty. Would a Conservative government submit these 20 acts to a 'liberties audit' and legislate to restore the rights that existed before 1997? After all, it would be a painless way of drawing a fundamental distinction between you and the current government.
You failed to answer my point about a Bill of Rights and Responsibilities. What responsibilities that are not already defined by the law would you include in this bill? Forgive me, but adding responsibilities to this equation seems a very Brownite instinct. Surely it is not for the government to define matters of conscience.
While I welcome your stand on ID cards, the extension of pre-trial detention and juries, I would like your thoughts on the almost unscrutinised creep of the surveillance state and its threat to individual liberty. Some say that we have nothing to fear from this if we have nothing to hide. Do you agree with this phrase, or do you think that it offers opportunities for abuse by future governments, the nature of which we cannot predict? In Canada, they are developing legislation that gives ownership of personal information to the individual. This is beginning to define the limits of the state's entitlement over the individual. Would you consider such an approach?
Finally, you didn't deal with the point about introducing a Bill of Rights and squaring it with Parliamentary sovereignty. This is more than an angels-on-a-pinhead issue. How do you place a code of rights beyond the reach of Parliament in a system where Parliament's word reigns supreme? Has your party found a mechanism?
Many thanks for your response.
I'll deal with the specifics and then the more general point you make.
First, we are a parliamentary democracy and Parliament has been the strongest defender of our rights over centuries. Defining the right role for charters of rights, as you say, is difficult. We face a choice. We could stick with the status quo, where we have effectively incorporated the European Convention into British law via the Human Rights Act. This has led to some real problems. We could go back to the situation before, where cases had to be taken to Strasbourg under the European Convention, rather than to British courts. Or we could leave the European Convention altogether. As I argued in my speech last year, I would go for a different approach of a British Bill of Rights judiciable in British courts.
Of course we would look for ways of entrenching this, perhaps by excluding the British Bill of Rights from the Parliament Act so the House of Commons could not repeal the Bill of Rights on its own.
On the issue of responsibilities, which you raise, it is not about trying to tell people what to do through legislation. I believe in 'liberty under the law'. The whole point of a British Bill of Rights is to try to define more clearly the rights to be safeguarded, but to have the liberty without some of the lunacies that the current situation has brought about.
You've got the wrong end of the stick with your point about 'speech crime'. Threatening actions, or words that incite violence, are generally outlawed, and that is surely right. But the big difference between me and Labour is that I don't think legislation is the answer to every problem. When I criticise some rap artists, or some companies for that matter, for things they do that I think are against the public interest but that don't incite violence, that doesn't mean I want to legislate against them. This is a crucial part of my political philosophy and my belief in social responsibility. As Burke said, politicians should know when to give a leaning, and when to give a law. From this government, it seems, all we ever get are laws. That's the road to an authoritarian state and I reject it.
On preachers of hate, I wasn't making a partisan point. I called the 'Londonistan' approach a 'historic' mistake. Any blame for it needs to be shared between parties - because the approach spanned governments of both colours.
But we should learn from our mistakes. Hizb-ut-Tahrir is a case in point. It's an organisation that, as Newsnight reported more than four years ago now, called for Jews to be killed wherever they are found. Such organisations are crossing the line and lose their right to organise in a free society. Two years ago Tony Blair promised they would be banned. They still haven't been.
That brings me to the general point you make. As you say, it doesn't do our liberties any good when the government's instinctive answer to every problem is to pass a new law. But nor does it do our security any good when necessary measures that were promised to protect our security aren't implemented.
Yes, I am passionate about rights and liberty. And, yes, I also believe in protecting British citizens from the threat of extremism that seeks to wipe out those rights and that liberty.
It is perfectly possible to get this balance right to protect liberty and to do all we can to make our country secure. The problem at the moment is that too many of the government's measures do neither.
Let me give two examples. First, dealing with terrorist suspects. On the one hand the government seems eager to allow longer periods of detention without charge, without providing new and compelling evidence that this is necessary. But on the other, they have for years ignored calls to take the step, as so many other countries have, of allowing the use of intercept evidence in court.
Second, ID cards. On the one hand these would be a huge and unnecessary incursion of the state into private life. But on the other, they would divert resources away from genuine measures to protect our security, like a proper border police.
So we need to move from an approach that meets neither the test of protecting our liberties nor the test of protecting our security, to one that does both.
A new Conservative government would reverse the ineffective authoritarianism we've seen from Blair and Brown and, as I have said, replace it with a hard-nosed defence of liberty.
That is a very interesting email and I know it will cause much debate, particularly on your solution to entrenching a Bill of Rights. As you know, it has required some ingenuity in countries such as New Zealand, where Parliament is sovereign.
The general enthusiasm that you express for liberty is welcome. Of course I would like a few more commitments on the surveillance state and rolling back Labour's authoritarian laws because the longer laws remain on the statute book, the harder they become to shift. But this has been a very useful exchange and I thank you for your time.
Many thanks. This has been an engaging and interesting debate.