Adam Smith Institute

2. "When the state gives us rights, we have responsibilities to it in return."

The state doesn't give us any rights; we give the state some powers. The rights we enjoy are not political ones given to us by some gracious authority; they are ones we owe to each other as human beings. Each right has its corresponding duty. One person's right to life corresponds to the obligation upon others not to take that life. One's right to property translates into another's duty not to steal.

We choose governments for our convenience, although some less fortunate people have them imposed by violence. They derive from our rights rather than constituting the source of them. In a free society, for our convenience we might choose to delegate our right to justice to an impartial authority of our peers. We might choose to band together for our joint defence against hostile intrusion. This is how the powers which government wields come about.

We owe responsibilities to each other. Most importantly we owe to others the obligation to respect their rights. But we do not owe responsibilities to the state; it owes to us the responsibility to carry out fairly and properly the tasks we have assigned to it. Government is not our master, to keep us in line and occasionally give us some rights for ourselves. It is our servant, employed by us to perform as instructed.

The English common law tradition recognizes that people can do whatever the law does not specifically forbid, but in the continental Napoleonic Code tradition, people can only do what the law specifically allows. This leads people falsely to suppose that the state is giving them these rights, when it would be more accurate to say that the state is recognizing those rights. Our responsibility to behave fairly and decently is something we owe to other people, not to government.

[This is the first in a new series of blogs to be published over the coming months. Each piece will look at a common error people make about free markets and the free societiy, and explain why they are mistaken. We hope readers of this blog will be able to make use of these arguments themselves, and in doing so convince others of the overwhleming case for liberty - Ed.]

1. "Only the guilty have anything to fear from surveillance or police searches."

The cry of oppressive and intrusive authority has always been that "only the guilty have anything to fear." It isn't true. Even the innocent have to fear an over-mighty and intrusive state. It has always been the case in free societies that each individual has a private domain which he or she is allowed to keep private. It's not that it holds guilty secrets, but that it holds private things that are no-one else's business.

Why should the state be allowed to open our mail, to snoop on our electronic communications, to tap our phones and to spy on us with its cameras? We are right to wonder why an innocent state would want such information about us. The mere possession of such information poses, in itself, the risk of abuse. Those with access to it are put in positions of power over others; the information could be used to blackmail or intimidate. It need not be about illegal activity, merely that which would cause embarrassment if it were known.

In free societies we put limits on the law. We deny it the right to snoop on the off-chance of finding guilt, but require it to show good cause for its investigation. We demand that it states what crime is suspected, rather than allowing it general warrants to see what it might find. We are not servants and underlings to be ordered about and kept in place by a mighty state: rather are we free citizens who sustain that state to serve us. It has no right to powers beyond those we accord it, and we do not choose to give it the right to know more about us than it needs to know in order to serve and protect us. 

Alain Roberts climbed Portland House the other day - a tall building (mainly full of quangos) near London's Victoria Station. He did it all with his hands and feet - he used no ropes, pitons or other kit. At the top he was promptly arrested.

The charge? Wasting police time.

Now I don't know what makes the police think their time is so valuable that the antics of this harmless eccentric amount to a waste of it. Presumably they reckon that while they were taking tea on the roof and waiting for 'Spiderman' Roberts to arrive, they could have been out booking motorists for doing 36mph, or harrassing middle class citizens for trying to stop thugs breaking into their homes.

The police didn't have to be there. Their action reminds me of the supposed lawyer's bill: To crossing the road to update you on your case, £100. To crossing back after realizing it wasn't you £100.

We seem to live in a society where we invent crimes for no good reason. Why punish people for smoking weed (or tobacco for that matter) when the only person caused any harm is themselves? I'd really prefer it if the police sat at home rather than having to think up new reasons to arrest folk.

Last week on Tuesday evening a mother of two was threatened with violence during a burglary, whilst her husband was away at work. This had happened before in the area, and not just on one separate occasion but on a total of 6 (5 of which happened to colleagues of the mother's husband). The organization which they work for is now looking into arranging their own private security service to guard the property of their employees when they are away. All of this raises a simple question: where were the police?

It is not hard to imagine that the police force in question may have gone out on strike early, but in fact they hadn't. They were doing exactly what every other police force in the UK does, reacting to crime, rather than preventing it. The police force in Britain today does little of what we would demand of them. This modern force, that we allegedly have at our disposal, has become not much more than a political puppet shackled by the minutiae of centralized bureaucracy. This is the main reason why they failed to piece together the obvious pattern emerging in the case of the above burglaries.

The police themselves are culpable of nothing less than a simple dereliction of their basic duty: to protect the public. We want them to patrol our communities and prosecute successfully those that commit crimes. The public of Britain would hardly be in the wrong if they demanded that the police, should they strike, stay out. If other organizations are employing private security services due to the shortcomings of the state run offerings, then let competition burst forth. We could then have communities policed as they demanded and not for some politicians folly, and a reduction in the council tax bill as a service is privatized.

And yes, in case you were wondering, the mother and father in question were Alex Curran and Steven Gerrard.

Police are said to be 'puzzled' that John Darwin's sons, Anthony and Mark, have decided to take legal advice and speak to them only through a lawyer. It is 'very strange' said a police spokesman.

Strange? You must be joking. It's perfectly sensible.

John Darwin went missing a few years back after supposedly taking his canoe on the sea in North-East England. His sudden re-appearance this month led to his (and his wife's) arrest on the suspicion that his disappearance was in fact a deliberate attempt to escape his debts. Police want to interview the sons as possible witnesses.

Well, either they knew about it, or they didn't. Either way, if I was them, I'd do the same and call the lawyers. I was brought up to trust the police as my friend. The Yorkshire Ripper enquiry - where information was kept on file cards rather then computers, and the police interviewed the guilty man nine times without figuring he had anything to hide - made me realize they were incompetent. More recently, their arresting folk on terrorist charges for cycling on a footpath or shouting at the Home Secretary made me realize they couldn't be trusted with the huge power politicians had voted them. And their willingness to charge someone with kidnapping who had made a citizen's arrest of a window-smashing thug made me realize that they were only interested in getting easy convictions so that they could meet their Home Office targets.

'Ask a policeman' I was taught. Now I wouldn't even ask them how to cross the road, never mind give them my name and address. Their brand has been polluted. Pity - it's not their fault. It's the rotten public-sector system they work under, and the political targets they have to work to. Sad.

Well, they are both on the minds of certain human rights activists and they are both sentinels of soviet-style denunciation because of anonymous bias-reporting systems in academia. These systems sprang from US universities (e.g. Virginia, Oregon State and Ohio State) and are spreading elsewhere. They are supposed to expose and punish people who make use of their free speech in a way the PC crowd regards as offensive and wants to be verboten. Their latest target is the well-known conservative publicist Mark Steyn.

The Canadian Islamic Congress has filed a "human rights complaint” against the prominent Canadian news magazine MacLean’s, because it published an excerpt of Steyn's book America Alone, considered by the plaintiff as "flagrantly Islamophobic". And at least two Human Rights Commissions are willing to hear those complaints. This is despite the fact that the book, which is published in the US, has already been best selling in Canada. Another way of looking at this attack on free speech is the worldwide rapidly growing list of Muslim Libel Cases.

In the meantime, many regard it as unfortunate that the erstwhile home country of individual liberty has become the "libel capital of the West" because in today's England the defendant in a libel case bears the burden of proof. The most notorious beneficiary of this is the Saudi Sheik K. S. bin Mahfouz, who has already filed 30 libel cases in the UK alone that usually result in banning books critical of Islam.

Steyn responds in the Weekly Standard:

The "progressive" left has grown accustomed to the regulation of speech, thinking it just a useful way of sticking it to Christian fundamentalist, rightwing columnists, and other despised groups. They don't know they're riding a tiger that in the end will devour them, too.

Various people are being uncomplimentary about the latest ideas for the abolition of freedom detention without trial as announced: constitutionally illiterate for example :

Proposals to extend the limit for pre-charge detention to 42 days are "constitutionally illiterate" as well as dangerous, critics warned yesterday, because proper parliamentary scrutiny would confuse the roles of MPs and judges.

The former attorney general, Lord Goldsmith, warned that such examination by MPs would be difficult, adding: "I think parliamentary scrutiny is hugely important and one of the great things we have in this country. But it isn't necessarily the right way to deal with individual cases, while they are going on."

I'm sorry? Politicians hold a vote as to whether a specific individual should be denied his freedom? That's dangerously close to a Bill of Attainder: further, it betrays a gobsmackingly awful understanding of what the "rule of law" actually means. Certainly, politicians get to decide what the law is but it then applies, evenhandedly, to all of us. For politicians to vote on whether that evenhandedness exists or not in individual cases replaces the rule of law with the rule of the mob, not, perhaps, a path we want to go any further down.

I'm reminded of Larry Flynt's words (and I paraphrase) after winning a First Amendment case in the US. If the law protects bastards like me you can be sure that it will protect you too.

Imagine, for a moment, a purely hypothetical: we have a one eyed, hook handed, benefits gobbling, bigamously married preacher, one who incites violence and is of dubious status as a British citizen (yes, this is a hypothetical). The Home Secretary asks for an extension of his detention. Does anyone really think that MPs will vote their consciences? On either the balance of probabilities or beyond reasonable doubt? Or will it be the Whips, or, worse, The Sun leader column that decides whether he continues to be denied his freedom?

And if the law will not protect him from politicians seeking votes, will it protect you? 

I'm entirely flabberghasted that (even) the current Home Secretary could think this an advance in freedom, liberty or security. 

I received an interesting pamphlet yesterday from the Society of Conservative Lawyers. Entitled A Modern Bill of Rights, it contains extracts from the work of various Conservative lawyers on whether Britain should have a 'Bill of Rights' to replace the Human Rights Act (something David Cameron has pledged to do) and on what form such a bill should take.

The problems with the Human Rights Act (HRA), which incorporated the European Convention on Human Rights into UK law, are encapsulated rather well by Jonathan Fisher QC in the pamphlet's preface:

In some instances the recognition of the Convention rights had led to absurd outcomes, whilst in other cases the Convention showed itself to be an inadequate protection against the anti-libertarian tendencies of an authoritarian government.

They build a good case against the HRA. But how should its replacement, the British Bill of Rights, be drafted? A written codification of our traditional liberties and common law rights (habeas corpus, trial by jury, etc.) would probably be the best option. As Dominic Grieve MP suggests, it should be exempted from the Parliament Acts, so that both Houses' approval would be needed to change it. All legislation would be have to be interpreted in accordance with it. Unavoidably incompatible secondary legislation would automatically be struck down, while primary legislation would be subject to judicial 'declarations of incompatibility' (as is currently the case under the HRA).

Such a system would protect liberty far more effectively than the present arrangement. And because those traditional liberties are so clear, well established and understood in English law, the courts would no longer be forced to make political judgements or encouraged to deliver perverse outcomes. That would be a definite improvement.

Brett Stephens had an interesting column in the Wall Street Journal yesterday, discussing The Allure of Tyranny. Why did 80 percent of Russians vote for parties allied to Vladimir Putin's Kremlin (another 11.5 percent voted for the Communists)? Why did 49 percent of Venezuelans vote for Hugo Chavez's constitutional reforms, which would have established him as president-for-life? There are three usual explanations but, as Stephens writes, none of them is completely satisfactory.

The first rationalization of why people choose tyranny is culture. Some countries are too tribal, some too religious. Others, like Russia, demand an iron fist. But cultural determination can only explain so much – "China is counterexampled by Taiwan; Zimbabwe by Botswana; Jeddah by Dubai..." and so on.

The second explanation is manipulation – the tyrant is so tactically skilled, so adept at propaganda, that people are truly misled, and do not realize quite what they are voting for. Again though, this runs afoul of reality. Plenty of people vote for tyrants with their eyes wide open.

The other theory is that tyranny relies on intimidation and dirty tricks for its success. Yet this does not explain why some tyrants are so genuinely popular. Indeed, with each explanation you look at, you come back to the same point. Jean-Francois Revel put it like this:

[S[ome important part of every society consists of people who actively want tyranny: either to exercise it themselves or – much more mysteriously – to submit to it. Democracy will therefore always remain at risk.

It's unfortunately rare but it does occasionally happen. Someone makes a sensible suggestion for a government policy (err, writing for a think tank perhaps that should be sometimes people not working for this think tank also make sensible suggestions...).

Cocaine addicts should be prescribed the drug by chemists and nurses to help them overcome the habit, the Government’s drug adviser said yesterday.

The ACMD also backed a change allowing nurses and chemists to prescribe diamorphine, cocaine or dipipanone to addicts under licence from the Home Office, in a bid to manage their problem. Ministers will now consider the proposal. But David Davis, the shadow home secretary, said: “If Gordon Brown signs up to this, it would show yet again that Labour merely seek to manage drug addiction rather than end it."

So yes, the idea is that this will be, for addicts at least, legalisation of a sort and thus a way to end some of the worst effects, impurities, disease, overdoses and the lethality of the scramble for profit in the illegal trade (btw, I looked it up: diamorphine for an addict would cost about £20 a day. Vastly cheaper for us as a whole than the current idiocy of the War on Drugs.).

My apologies to David Davis on this one (he is rumoured, as an ex SAS Territorial, to be able to kill me with a plastic spoon) but you're at the wrong end of the argument here. We've shown over the past few decades that we cannot end drug addiction (even if we were to destroy every vestige of liberty, as Milton Friedman pointed out) so all that is left to us is the possibility of managing it. We can do that sensibly, by making clean and pure drugs available to those who would take impure and grossly expensive ones if those were their only option, or we can carry on with the current policies which a) don't work and b) kill people.

On Monday evening the Oxford Union (OU) held a forum on free speech titled, "A Night of Discussion on Free Speech". Many of you may well be under the illusion that it was about something completely different due to the media coverage. Two of the speakers they chose were Nick Griffin, leader of the BNP and David Irving, the historian; both have a very close relationship to free speech.

They hold views that the majority of rational people would find distasteful. Irving has denied the scale of the Holocaust, whilst Griffin believes that immigrants (especially non–whites) should be returned to their homelands (we’ll leave aside the wide–ranging socialism of his party for now). They were not given a platform to vent on these issues though, and I suspect that even if they had then many in the audience would have easily deflated their arguments.

The alarmist nature of the media – mainly based on the shrill of those who despise different ideas and views being placed in the public domain – has, as always, meant that a logical and rational debate on free speech has had to be put aside. We should all be able to protect ourselves against the misuse of free speech. It is after all not a granted right; it is inalienable. The faith in our abilities should not be handed over to the government so that they may grant us the privilege of hearing, reading and seeing what they deem to be right. That is the path down which many of those bemoaning the invitation of those two speakers wish to take us. People are free to speak, as we are all free not to listen. We must have faith in all to ignore those with a message of hate.

The OU should be applauded for having the courage to specifically invite those two speakers to debate. They should be supported for believing that the students in attendance are rational and intelligent enough to make up their own minds.

According to the LA Times, welfare officers in San Diego, California have the authority to search through the homes of benefit recipients to root out welfare fraud. The 9th Circuit Court of Appeals (the regional court one level below the Supreme Court) ruled against an American Civil Liberties Union suit in favour of San Diego County. Yesterday, the Supreme Court declined to hear the case.

This issue raises some interesting points. First, the prohibition of government officials from searching private homes without cause is protected by the US Constitution and considered one of the cornerstone civil liberties of the nation. But to what extent do individuals give up some of these rights when they receive public funds? If the government pays your rent, does your home belong to you as a private residence or to the state? Government handouts complicate civil liberties because those liberties are fundamentally based on the rights of autonomous individuals from state intrusion, not individuals living off state funds.

Nevertheless, setting a precedent that eroding the liberties of those receiving state funds is permissible is dangerous, especially given the growing number of people who receive benefits and might now be subject to warrant-less searches.

In the San Diego case, county officials claimed that their searchers did not violate the 4th amendment because they were not searching for evidence of a crime. Police in Boston used a similar argument when trying to convince parents to allow them into homes to search for guns hidden by teenagers. Police argued that they would not charge the teens, just remove the guns in an effort to get them off the street. These are the classic arguments of government, which naturally seeks to expand its own powers.

The libertarian solution would be to end welfare benefits, as they allow the state an avenue through which to constantly expand its power. For now, courts must prioritize the protection of civil liberties, even as they are complicated by the increasing role of the state in people's lives.

I've been waiting, with bated breath, for that delightful example of bureaucratic competence, the losing of 25 million records, to be used as an example of how ID cards were even more important. Not just important, necessary even, for, in some magical manner, the fact that the information on them will be much more important, means that the possibility of normal levels of bureaucratic competence is simply impossible.

Lo and behold, we actually have this argument being made by David Blunkett in a letter to The Times. On first reading my favourite part was this:

The first, as I have discovered in the three years since I was Home Secretary — including as the honorary chair of the Information Systems Security Association Advisory Group — is the astonishing lack of understanding about the necessity of security in the transfer of data.

Perhaps I'm being picky but shouldn't we be choosing our Home Secretaries from the pool of people who already understand these basic facts before their appointment, rather than those who find them out after their resignation? 

As the day went on I found Dizzy's refutation of his points on security. ID cards will be plagued with exactly the same problems for the system will still contain that most fallible of instruments, human beings. Mr. Blunkett's testament here is, in Dizzy's view, testes.

I then found Mr. Eugenides who has something else very interesting to point out. Mr. Blunkett is a paid advisor to a company which operates ID card systems and that company has registered an interest in contracting for parts of the UK one.

So the thought of said Mr. Blunkett telling us all that the ID card system will be quite different, indeed, super-secure, so much so in fact that the recent gobsmackingly awful security shambles shows just how vital it is that we get cracking on the new system toot sweet, doesn't surprise me.

As the risk of getting all Mandy Rice-Davies on you, well, he would, wouldn't he? 

It transpires that HM Revenue and Customs has "lost" the details of 25 million child benefit recipients in the post. The records included the names and addresses of parents and their children, dates of birth, child benefit and national insurance numbers, and – in seven million cases – bank and building society records. The data was contained on two discs, which were sent to the National Audit Office by unrecorded delivery. No one knows where they ended up.

To his credit Paul Gray, the chairman of HMRC, has already resigned. But this incident should raise much wider questions about the extent to which we are prepared to trust government with our personal information. Surely this sort of thing provides the single greatest argument against ID cards and the central ID database the scheme would entail?

Factor in civil liberties concerns and spiralling costs, and the case against ID cards looks pretty conclusive. Of course, the government tells us we can trust them, that they have our best interests at heart, and that ID cards will make the world a safer place. I'm sure they believe it. But does anyone believe them?