The state of freedom in Britain, at LSE

by Carl Gardner on June 11, 2014

Last week at LSE, Professor Conor Gearty chaired an event on “the state of freedom in Britain” at which Professor Nicola Lacey and Liberty’s director Shami Chakrabarti (who’s a bit of a guest star on this blog at the moment) each looked at liberty in the UK from their own angle. You can watch the video above; or just listen to the audio in the player below.

Nicola Lacey looks at freedom specifically from the point of view of criminal law. She talks about the expansion in the number of criminal offences over the last 20 years, including the huge expansion of criminal law since she studied the subject 30 years ago; the increasing reach of the criminal law beyond our actual behaviour and its consequences, or even attempts to produce results, into thoughts and merely preparatory actions.

She also talks about the growth of regulatory criminal offences. As someone who’s worked in government, her approach to such offences is interesting. From the point of view of Whitehall, in my experience it often feels as though there is no lever whatever with which ministers can influence the world, except criminal law.

Perhaps her most interesting and original point – I’d like to hear it even more fully developed – is that freedom has been redistributed in recent years from some people to others. That seems to me a key political insight: Nicola Lacey didn’t (and I think wouldn’t) put it this way, but what many people see as restrictions of liberty that affect some people may, it seems to me, be amply justified if they deliver increased liberty to society as a whole.

Shami Chakrabarti talks of her experience as a lawyer in the Home Office, working on bad legislation, she calls it. She goes on to talk about what she sees as government moving beyond criminal law into civil and quasi-criminal law (such as the antisocial behaviour legislation), administrative law and immigration law, as more and more intensive ways of interfering with liberty. In an interesting passage on the Human Rights Act, she claims that equality, and specifically the equal enjoyment of human rights, is the most fundamental human right of all. I often find myself disagreeing with Shami Chakrabarti, but I think she makes an interesting and strong point here.

She mentions the importance of privacy too, and discusses the Snowden revelations, and what she sees as the state’s tendency simply to spy on us just because it can. “They want”, she said in response to a question,

No privacy for us, and no scrutiny for them.

In public discussions on this, there’s often for my taste too much comfortable agreement among lawyers on a LibDem-like worldview – and there was quite a lot of agreement here. In response to a question Nicola Lacey also calls the Snowden revelations “distressing”, and suggests Labour’s failure in her view to protect civil liberties is somehow linked to the electoral system – a view I find hard to understand. I’m not really surprised that Iraq came up by the end.

To be fair, Shami Chakrabarti does concede at one point that New Labour may at least initially have been motivated by “progressive” aims when bringing antisocial behaviour orders, for example – I think she’s right about that. I’m pleased that one “optimistic” questioner put things in perspective by saying she didn’t mind how tough regulation of abattoirs was – a shrewd reference to the sort of regulatory creep Nicola Lacey had mentioned – and reminded the audience that we’re now much freer than we were in the past, for instance in our sexual lives. I agree, and think the fear that we’re “losing” liberty reflects in part a failure to see the big picture.

It’s an interesting discussion – and well worth listening to, as all these LSE Law events are.

Play

{ 2 comments… read them below or add one }

1 Claire Finn June 12, 2014 at 20:34

Carl

It was indeed, well worth listening to. Both speakers make so many good points, I will be listening again.

Shami Chakrabarti made some excellent points about how we all welcome this regulatory and criminalisation creep because we always assume it’s directed at someone else’s behaviour and not our own. Ironically, the ‘optimistic’ questioner and yourself illustrated her point quite marvellously by stating you don’t mind tighter regulations on certain behaviour (of abattoir owners) but not others!
I think her point and Nicola Lacey’s is that once you start down this path of making more and more things illegal it will apply to you eventually and the state will gain more and more control over your life. Creeping criminalisation is indeed a very powerful tool of state control. I think the main thrust of Shami’s argument, and I agree with it, is that it is very dangerous to think that you can increase liberty in society as a whole by restricting some individual people’s liberty. I’m not even sure I know what you mean by “liberty in society as a whole” as opposed to individual liberty.

You state:

“in my experience it often feels as though there is no lever whatever with which ministers can influence the world, except criminal law.”

Quite!
Someone else put it like this:

“There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.”

The fact that some of them contradict each other or are not applied uniformly, as Nicola points out, just adds to the government’s arbitrary, discretionary and blackmail powers. To enforce all these regulations uniformly would probably bring the economy to a standstill but once in place, the state has the power to go after whomever it pleases, arbitrarily, discriminatingly, even “unequally” you might say.

You dismiss Nicola Lacey’s view of the Snowden revelations when she says they are distressing but you don’t address Shami’s, excellent I think, comparison between blanket monitoring of the internet and what blanket surveillance of us in ‘real life’ would look like. I agree with her that most of us would see it as a gross invasion of privacy and liberty to have cameras installed in our homes to collect information ‘in case’ and I fail to see any substantive difference between the two scenarios. But perhaps you would have no problem with it just as long as it was voted for by a Parliament that the electorate gives a “blank cheque” to every five years.

Given your views on campaign finance and media control I’m curious as to what you think of Shami’s answer to a question on the BBC’s coverage of UKIP and the Green party. She, correctly in my view, stated that the ‘no platform’ argument really doesn’t work in this internet age where we all have a platform, so to speak. And she said this in defence of a state owned broadcasting channel which, you’d think, would have some obligations to impartial coverage. How much more does this argument apply to private broadcasting?! Privately owned media and sponsoring of viewpoints does not silence or deny anyone a platform.

2 Jeremy Poynton July 2, 2014 at 11:03

“Nicola Lacey also calls the Snowden revelations “distressing”, and suggests Labour’s failure in her view to protect civil liberties ”

WTF? They set about destroying them with positive intent. “Failure to protect” is a rewriting of history. Shame.

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