Live Free Or Die

Henry Porter’s superb submission to Parliament:

Two things are striking as you read through the oral evidence presented to the Joint Committee on Human Rights. The first is the measured calm of the majority of your witnesses and, indeed, of the majority of the committee, in the face of the most serious attack on personal freedom and privacy ever mounted during peacetime in this country. British democracy is on the brink of being changed beyond recognition, yet nothing seems to disturb the equanimity of your proceedings. Even allowing for the well-mannered traditions of parliamentary committees, the lack of urgency and of a sense of crisis seems remarkable.

The second point that occurs to an outsider unfamiliar with parliamentary routines is that this campaign against Britain's historic rights and freedoms began at almost the precise moment the European Human Rights Convention was incorporated into British law as the Human Rights Act (HRA) in 1998. In other words, the HRA, a Bill of Rights by any other name, has allowed the executive and Civil Service to roll back individual liberty and privacy and has done almost nothing to defend the British public from the accumulation of centralised power.

Let me make it clear that the HRA has brought many benefits, for instance in the questioning of rape victims, treatment of old people and ensuring that foreign prisoners who may be tortured in their countries are not deported. But despite its many advantages, the reality is that the HRA does not work effectively as a Bill of Rights and cannot guarantee the civil liberties necessary for a free society, a point perhaps tacitly admitted by the appearance of Gordon Brown's green paper last summer.

The shocking loss of rights in Britain is now being noticed with bafflement abroad by people who do not understand this turn of events in one of the oldest democracies in the world. On a book tour last month in France, I was repeatedly asked by journalists: 'Why in Britain? Why are there no demonstrations?'

There are complex answers to these questions, but an obvious one is that the government has consistently advanced the argument that new laws meet singular threats from crime, terror and antisocial behaviour. We accepted these appeals with a rare faith in the wisdom and benevolence of our leaders, a faith, incidentally, that I increasingly do not share. After a decade, the account shows a devastating loss of the freedoms that we once regarded as our birthright, the self-evident and self-perpetuating virtue of the British people and their constitution.

The shocking part of it all is that it has occurred with almost no coherent analysis, scrutiny or opposition in Parliament, no debate about the direction of our society and only a little understanding and exposition in the media.

We have taken a false sense of security from the HRA. Indeed, there seems every reason to suspect that it has served the executive and Civil Service as an alibi, while the balance between state power and individual freedom has been critically altered in the state's favour. If the maintenance of civil liberties is the best measure of a code of rights, then the HRA must surely be declared a failure.

But this is not due to any innate problem with the act, rather to the state of parliamentary democracy, which I will come to later.

To show how the HRA fails us in practice, I want to draw the committee's attention to the key article eight in the act, the one that guarantees 'the right to respect for private and family life, home and correspondence'.

By far the most dramatic threat to ordinary people's freedom in the last decade has been the growth of the database state. Under Labour's plans for 'transformational government', an almighty surveillance structure is envisaged, through which, by the admission of the man in charge, Sir David Varney, the state will know 'a deep truth about the citizen based on their behaviour, experience, beliefs, needs or desires'.

As Jill Kirby pointed out in a recent Centre for Policy Studies pamphlet, the government's intention is to centralise and share all information on the citizen, both horizontally and vertically, without the citizen's knowledge. It is hard to imagine a more sinister apparatus of intrusion, and so control, but the project advances untroubled by the scrutiny of Parliament.

The state's nightmarish lust for our personal data does not stop there. Already, all journeys undertaken on motorways and through town centres are recorded by the network of automatic number-plate recognition (ANPR) cameras, with the information retained for two years. Under the National Identity Register, it seems that 49 pieces of information will still be required by the state and that every important transaction in the citizen's life recorded. And there is a new proposal to collect 19 pieces of information, including mobile phone and credit-card numbers from people travelling abroad, which the government plans to use for 'general public policy purposes' - that is, the mass surveillance of a free people. I remind the committee of something American cryptographer and computer expert Bruce Schneier wrote: 'It is poor civic hygiene to install technologies that could some day facilitate a police state.'

The story of the HRA's failure gets worse when you reach the guarantees on the privacy of family life, home and correspondence. The act simply doesn't perform. There are now five databases that will, in various degrees, breach the privacy of children and their families. The home is threatened for the first time since 1604 by new regulations concerning bailiffs who, under the Tribunals, Courts and Enforcement Act, are about to be allowed to offer violence against the householder. As to our correspondence, with more than half-a-million intercepts of post, email, and internet connections a year, with nearly 700 authorities allowed to apply for phone records and to intercept a person's communications on the thinnest pretext, it is clear the HRA has not and will not guarantee the privacy of our communications.

I hope I will not be thought melodramatic when I say that if this trend continues, there will be some who will not feel able to continue to live in this country.

There is a profound but unacknowledged crisis in this country. Our liberties have been attacked, but we have also suffered a collapse in what I would call the liberty reflex, both in and outside Parliament. Twenty years ago, the measures I describe above, which are often brought into law by statutory instrument - effectively ministerial decree - would have been unthinkable. The media would have been inflamed; former members of the National Council for Civil Liberties (now Liberty) such as Harriet Harman and Patricia Hewitt would have been talking about a police state and there would almost certainly have been marches and protests. But today we just let it go.

This is why I believe a new Bill of Rights is imperative. But it must be a Bill of Rights that is clearly British in origin and that draws its potency from our traditions and culture, and from the settlements of 1689 and Magna Carta, insisting, for example, on the right to trial by jury, which is not found in European charters and conventions. There is no question that such a bill would include the alleged guarantees in the HRA, but, crucially, the drafting would be part of a process of general political renewal, in which there was a rebalancing of powers at the very top of our democracy. It should be a work of simplicity and eloquence in which the British people, not Parliament or a team of ministerial scribblers working from some bogus consultation process, define their inalienable rights as part of a new covenant between the people and Parliament and between the executive and Parliament.

It goes without saying that it should be entrenched, that is, placed beyond the reach of the authoritarian tendencies that are obviously alive in the Civil Service and the current administration and permitted by an easily manipulated parliamentary majority.

Conventional thinking says such laws cannot be 'entrenched' and that no parliament can bind its successors. But in reality this is nonsense. All constitutions, however strongly codified, always allow for a process of amendment. The Parliament Act may be amended so that a Bill of Rights could be altered only in circumstances where there was a consensus. The result would be the people's prized possession, a thing that every child would learn at school and could perhaps quote at will later in life.

As you see, I do not recoil from the idea of unelected judges deciding where Parliament has overstepped the mark, because over the last few years, it has been the judiciary that has so often supported the principles of liberty and rights. MPs would be wise to agree with this and stop pretending to the public that they are the sole defenders of the public realm.

Parliamentary sovereignty is the reason why discussion about a Bill of Rights never gets anywhere. Its mystical power is unquestioningly viewed as the secret, or, at least, the guardian, of our free society. But is that really so? In the political context, the OED defines sovereignty thus: 'Supremacy in respect of power, domination or rank; supreme dominion, authority or rule.' Parliament is obviously not sovereign, because the executive runs everything. The government decides on and schedules parliamentary business, appoints the chairs of select committees and controls and smothers debate by means of standing orders and standing committees. The truth is that Parliament can offer the public little effective protection because it is itself in the thrall of the executive.

There is a temptation in this debate to think in rather academic terms about concepts of law and sovereignty, yet I am struck by the vivid examples of change that you hear about every day - the spread of unnecessary and intrusive CCTV; the appearance of immigration officials - plus heavies with earpieces - randomly stopping people outside London tube stations to question them about their status; the pupils being fingerprinted at their school library; the use of the 'mosquito' to control young people; the commands barked through speakers telling people to behave; the appearance of listening devices on the streets of Westminster.

Certainly our society has its problems, but I feel certain that this hectoring attitude stems from the government's fundamental disrespect for the people and their rights. The attitude is at the heart of the transfer of power from the individual to the state.

Entrenching a Bill of Rights would go a long way to arresting the trend. But what we don't need is a placebo bill drawn to act as a new alibi. I believe there is a very good reason why a Bill of Rights has been put on the political agenda by a government that is already responsible for the HRA. It recognises the strength of the case that has been made against it by civil libertarians and wants to answer that case before the next election with a measure that seems incontestably wedded to the principles of a free society.

It is a shrewd and cynical exercise, because at the same time the government will attempt to own the process and so ensure that nothing that remotely threatens executive power reaches the statute book.

Finally, I want to say something about the phrase 'rights and responsibilities' used by Jack Straw and Gordon Brown in respect of a new bill. This springs from the telling belief among ministers that rights are somehow in the gift of the government and that they are entitled to require people to sign up to a list of responsibilities in exchange. This is arrogant nonsense. The citizen's responsibilities are defined by common, civil and criminal law and ministers display a constitutional impertinence by suggesting otherwise.

henry.porter@observer.co.uk

How this government has undermined society

Communications

· Under the Regulation of Investigatory Powers Act (2002), government agencies make 500,000 secret interceptions of email, internet connections and standard mail.

· Since summer 2007, the government and some 700 agencies have had access to all landline and mobile phone records.

Databases

· Police build network of ANPR cameras on motorways and in town centres. Data stored for two years.

· The National Identity Register will store details of every verification made by ID card holder. Data used without knowledge of citizens.

· ID card enrolment will require biometric details and large amount of personal data.

· The Home Office plans to take 19 pieces of information from anyone travelling abroad. No statutory basis.

Free expressions

· Public-order laws have been used to curtail free expression.

· The Race and Religious Hatred Act (2006) bans incitement of hatred on religious grounds.

· Terror laws are used to ban freedom of expression in some areas.

The courts

· Asbo legislation introduces hearsay evidence which can result in jail sentence.

· The Criminal Justice Act (2003) attacks jury trial.

· Admissibility of bad character, previous convictions and acquittals.

· The Proceeds of Crime Act (2002) allows confiscation of assets without prosecution.

· Special Immigration Appeals Court hearings held in secret.

Terror laws

· Terror laws used to stop and search. Current rate is 50,000 per annum.

· A maximum of 28 days detention without charge.