Every new law should have to pass the liberty test
 

By Oliver Letwin
(Filed: 02/07/2002)

Is Britain a free country? Partly yes and partly no. For all sorts of reasons, we restrain ourselves or allow a law to restrain us from doing all sorts of things. But within that framework of law, we are free to do as we please.

Freedom is not the be-all and end-all. It has to compete with other absolute values, such as security and prosperity, fairness and justice. But this does not mean that we can ever afford to ignore claims for freedom. The great genius of Britain has been to fashion a framework of balanced liberty within which the claims of freedom have been reconciled with security, prosperity, fairness and justice.

Magna Carta granted liberties for all free men of this our realm "to be kept in our Kingdom of England for ever". These liberties protected the individual subject from the arbitrary power of the state. Those who fashioned Magna Carta expected a multitude of constraints on individual action, but they demanded that the state, too, should be constrained, so that the liberties of the subject might be both defined and preserved.

Increasingly, and worryingly, in recent years we have seen the beginning of the erosion of British attachment to balanced liberty. We have seen a government so confident of the virtues and effectiveness of state action that it does not much concern itself with the necessity to constrain the state.

The examples are legion: the attempt to extend the power of the state beyond the immediate needs of security under the Anti-Terrorism Crime and Security Act (mercifully defeated in the Lords), the snoopers' charter allowing virtually every government agency to trace emails (now withdrawn), the attack on trial by jury (now to be abandoned) and the threat to the political independence of the police arising from the Home Secretary's attempt to control every part of every police force in Britain from a desk in Whitehall (now the subject of a battle between the Government in the Commons and the Opposition in the Lords).

What is interesting about these moves is not so much the fact that they have been made, but rather that the Government has seemed to be surprised by the fact that not only the Opposition but also many of its own backbenchers have expressed concern. It seems that, when discussing these matters internally, ministers have not imagined that the claims of liberty were a serious consideration.

Very similar observations can be made about the long-running debate on hunting. The surprising thing about this debate is not that it occurs, or that many MPs and commentators advance arguments of one kind or another for banning the sport, but rather that, in advocating this measure, its proponents have seldom acknowledged the force of the opposing argument from liberty, almost as if the voice of liberty were to be excluded from the conversation of politics.

A preoccupation with our liberties, and an insistence that the voice of liberty should remain part of the conversation of politics, is an ancient Tory theme. Those commentators who have imagined that the renewed attention to liberty on the part of the Conservatives is some kind of reversal or swing to the Left betray vast historical ignorance. An attachment to balanced liberty has characterised Conservative policies for as long as the party has been in existence.

But an attachment to the claims of liberty is also to be found in the hearts and minds of many who are not and have never been Tories. What we need now is to recreate a debate in which those claims, though not always triumphant, are always heard and considered.

To this end, I propose that we should seek to achieve a cross-party consensus in favour of a parliamentary device that would, I believe, begin to re-establish healthy democratic debate. This device would be based on existing mechanisms used to ensure that Parliament always considers items such as the regulatory impact of new statutory instruments or the interaction of domestic legislation with European law and human rights law.

My suggestion is that each piece of legislation should have to be accompanied by an explicit, detailed and reasoned statement from the sponsoring minister, explaining how that piece of legislation will affect the liberties of the individual. The idea for such a test for legislation came out of the Free Country conference in London in May, which was sponsored by The Daily Telegraph.

A requirement for such a statement would have two principal effects. First, it would compel civil servants, when preparing legislation, to consider the effects on our liberty and would thereby prompt discussion of those effects between civil servants and ministers before the legislation was introduced to a wider audience.

Second, the statement would tend to prompt debate in Parliament, and more widely, about whether the potential gains were sufficient to outweigh any adverse impact on freedom that the legislation might have.

In practice, these two effects would resonate with one another. Civil servants and ministers would be inclined to take seriously the question of the impact on liberty of their legislation, because they would know that their reasoning would be subject to public and parliamentary scrutiny.

The durability of the Freedom Statement would lie in its political neutrality. By awakening the government to the claims of liberty, it would lessen the chance of that government finding itself out of tune with prevailing national sentiment and having to withdraw proposals, as the present Government has so often had to do.

At the same time, by focusing debate, the device would give the Opposition a clearer basis for effective scrutiny. Democracy, rather than one party or another, would be the winner.