British liberties viewed from the Land of the Free

The subject of liberty came at me in three different ways on a single Sunday morning in Washington a few days ago. The top article in the Washington Post was headed “In today’s viral world, who keeps a civil tongue” and concerns what it referred to as “the rules of civil discourse”, specifically in relation to the freedom to say what you please. I went to the Arlington National Cemetery, and gazed on the thousands who lie buried there who fought for our freedom. My way back was blocked by a march demanding gay equality, and specifically the freedom of people of the same sex to marry.


Being abroad, reading other peoples’ newspapers and being surrounded by their culture makes you look at your own from a different angle. If the thoughts inspired by this random collection of ideas have little to do with electronic discovery, they fit under my broader brief of cross-cultural communication. If my reason for being in Washington has a narrower purpose, I can be excused a wider ramble occasionally, both for illustrations or parallels and for making the UK comprehensible to Americans, whose newspapers are not much interested in us.

British politics is about to enter a period of deeper incivility than anything discussed in the Washington Post article. If the economy will be centre-stage in that election, the loss of fundamental freedoms at the hands of our own leaders will not be far behind as an issue.

8th Air Force at LavenhamThe dead in Arlington (and the plaque shown here, with its reference to a USAF station at Lavenham in Suffolk, England  reminds us that American servicemen fought shoulder-to-shoulder with us) would be appalled at how we seem content to let it just happen – we who went to war for Belgium in 1914, Poland in 1939, and for democracy in Iraq, have let our own freedoms die before our eyes. We may be relaxed about the freedom for gays to marry but other equally important liberties are being eroded by stealth. We do a nice line in political invective but seem unable to translate that into resistance. Meanwhile, another equality battle, for the role of women in public life, has been thrown away by the conduct and attitude of those who appeared to have won it.

When the pluses and the minuses are averaged out, Britain and the US are probably about quits across this range of subjects. There is a stronger tradition in Britain of acerbic comment about our rulers – the decline of deference may appear to date from the 1960s but in fact has its roots firmly in the early 18th Century; even before Blair and Brown debased it, we lacked the respect for the office of the Prime Minister which Americans have for the office of President. We have much the same attitude as to the libertarian purposes of military action, and our military cemeteries are no less eloquent on the subject of the freedom for which soldiers, sailors and airmen laid down their lives (although that compact between society and soldier has been undermined by the false prospectus on which Blair took us into Iraq, by the absence of any post-conquest plan, and by scandalous equipment shortcomings). Britain is ahead of the US in according legal equality to gays, largely because we lack the sharp religious divides which translate into political power in the US, but we cannot seem to entice able women into public life or, at any rate, into politics, where America can and does (I do not suggest that equality has yet arrived in this context, nor that mere numerical balance is worth aiming for, merely that American politics can attract high-powered women where we get Harriet Harman – see below).

So far as “civil discourse” is concerned, the Washington Post article explored whether the internet, e-mail and other instant forms of communication have made popular involvement in politics not only more active but more uncivil than hitherto. Its conclusion was that there has always been forcefulness in political expression and that, whilst the Internet may provide immediacy and very wide audiences, “new technology only accentuates a raucous tradition” as the Post puts it. You don’t need technology, of course: modern non-Internet insult such as Republican Representative Joe Wilson’s shout of “liar” to President Obama would have caused an equal stir in Britain’s Parliament, if only because of a formal convention that “honourable members” treat each other as such, at least within the confines of Parliament. In any event, calling Gordon Brown “liar” is like berating a pig for wallowing in mud or criticising a savage because his table manners are not up to scratch. It is more realistic (and, in fact, more effective as invective) to draw attention to the occasional times when Brown has the truth dragged out of him.

The reality, of course, is that politicians take no notice of voters unless the voters can hurt them. The joy of the MPs’ expenses scandal is that it has mobilised sufficient contempt towards politicians to make them feel the pain and to show it. The voters’ outrage, genuine enough anyway, is magnified by the sense that they have a stick in their hands and that the bullies are on the run. Sticks and stones can’t break their bones, at least until the election on 3 June 2010, but words, for once, can hurt them. If most of the opprobrium falls on New Labour (and both main US parties are babes in arms when it comes to handing out political opprobrium) that is not solely for party political reasons, nor is Labour in the frame simply because it has been the party in power.

New Labour gets it because it has laid claim, expressly and by implication, to the moral high ground. It does so expressly even when led first by an obvious charlatan who described himself as a “pretty straight kind of guy” and then by a patently dishonest man who bangs on about his “moral compass”. As to implication, the whole nanny state approach, with its premise that the state knows what is good for you, is objectionable anyway, but becomes more obviously so when its leaders consider themselves exempt from the rules which they impose on the rest of us. Once it becomes obvious that they no longer expect you to believe them, nor care if you do, then uncivil discourse becomes the only way to get attention. If they listen to nothing, then everything is equally a lost cause and one might as well leap straight to the more extreme ways of getting attention.

There was a ghastly little woman from the Cabinet called Yvette Cooper, the Minister for Work and Pensions, on BBC Question Time the other night. One of the problems of dishonesty as a political creed is that its practitioners probably conceal the reality from themselves in their enthusiasm to conceal it from us, and Cooper’s evasiveness was so transparently clear that I began to wonder if politicians actually delude themselves. Is it just political chicanery which prevents them from answering questions, or do they really not understand what the questions mean? Cooper illustrates all three of my themes – the need for the “raucous tradition” of political invective, the importance of fighting for liberty and the responsibility of those who win equality to live up to it.

Taking the last one first, whilst gays have won through in the UK in the last decade (in the wholly positive sense that no-one notices or cares any more), women have not shone in politics, and for reasons which are not obviously to do with their sex. Cooper is almost the sole survivor of the large batch of promising-looking women (as in they appeared to have promise and nothing to do with what they looked like) who were the so-called “Blair Babes” when New Labour was new (“Tone’s Crones” perhaps by now). The rest have melted away through a combination of incompetence (Jacqui Smith), unconscionable conduct over their expenses (Hazel Blears, Jacqui Smith again), or sheer stupidity (Caroline Flint). Those still in post include a laughing-stock (Harriet Harman) and nonentities too numerous to name. Cooper is the only one of that group still in a senior position if you ignore Harman (as one does).

Meanwhile the Attorney General, Baroness Scotland, who had achieved without fuss or fanfare the distinction of being the first black woman to be first a QC and then a Law Officer of the Crown, will now be remembered only because her employment of a Tongan cleaner broke tough immigration laws which it was her duty to uphold, and then appeared contemptuous of them. That matters not just as a betrayal of those who looked up to Lady Scotland as a role model, but because the law which she broke is a model of the unforgiving impingement of bureaucracy which now dominates the lives of the rest of us. Laws, it seems, are only for the little people. If the women I name here all come from New Labour, that is because I cannot think of any women from any other party. What was the name of that Tory woman who was briefly famous for her heels? You see the problem.

Gay march in WashingtonYou cannot resolve this kind of inequalities battle by taking to the streets on a protest march. Demands on placards for a higher calibre of women in politics is no solution; they would be no more helpful than Harriet Harman’s demand for all-women shortlists and for an automatic place for a woman at the head of government. The obvious implication – that women can only be successful if men re-write the rules to help them do it – is presumably not what Hattie Harridan intended.

I pick out the women only because I hoped for better from them and because of the contrast between the two countries which these strands of gender equality give us: American gays must fight for equalities which we take for granted, but it can field world-class players like Madeleine Albright, Condoleezza Rice and Hillary Clinton where we can only produce hopeless little women like Harman, Smith and Cooper. You may not like any of the American women named here, but you do not despise them as you do the rancid cream of British political womanhood.

Let me give you just a taste of the extent to which we in Britain have lost our freedoms at the hands of people like those described above and their male counterparts. Going just a few weeks back will do. Some civil servants in one of those unaccountable agencies spawned by the child protection bureaucracy announced regulations requiring anyone, parents included, who had care of another’s child – collecting him or her from hockey perhaps – would require a certificate similar to (or perhaps the same as – it was not clear) the present Criminal Records Bureau (CRB) check. Libby Purves, writing in the Times (Look, vulnerable people. Quick draft a daft law), talked of “a moronically droning civil servant repeating empty formulas about ‘our children’”. A day or two later, news broke of a warning given by OFSTED (the Office for Standards in Education, Children’s Services and Skills) to two women police officers; the childcare arrangements under which they took turns to look after both sets of children was, said another moronically droning pen-pusher, undertaken for reward (namely the reciprocal arrangements) and both the mothers must get themselves certified as child-minders.

It is not just the low-grade civil servants who feel they must regulate our every act: even the shop-girls have a role it seems. At about the same time, a woman running the deli counter in a supermarket refused to sell a lump of cheese to a customer on the grounds that she was pregnant. The cheese was hard, the pregnancy advanced and the danger non-existent – but what business was it of the drab behind the counter anyway? The supermarket’s apology made it worse – it focused on the “mistake” made as to the risk of that particular cheese, thus implying that shop-girls have a right to censor our shopping lists.

As all this was going on, all this poking of officious noses into the business of other people, the inquest took place of a woman who had killed herself and her daughter (and the family’s rabbit) by blowing up their car. Leicestershire police had not bothered to respond to her repeated pleas for protection from the yobs of the village who had tormented the family over a long period. The appalled coroner identified eight separate offences with which the youths could have been charged. The Chief Constable, who appears to have been as dim as he was neglectful, seemed barely to understand the enormity of what had happened. Lessons have been learned, he recited, as if that made his force’s neglect less heinous. So – one type of child is so over-protected that it cannot be taken to school by its mother’s best friend whilst another is left free to terrorise a woman to death.

Do you see what I mean about liberty? It is not just storm-troopers marching across your borders or tanks rolling through your streets or the Stasi spying in your block. Freedom lies in being able to go about your business untrammelled by the apparatus of the state except where intervention is necessary, whilst being entitled to the state’s protection when it is needed. Yvette Cooper and her kind are sure that they know what is right for you – and you, and you, and me – and will pass laws or empower civil servants to force you to act, to prevent you acting, or to make you apply for a licence, as they think fit. Gradually the imposition of fresh restraint acquires its own momentum.

No-one of any real authority – and certainly no-one we elected – decided on new rules to extend the licensing of casual child-minding. A civil servant calculated that an incoming government would prevent these ad hoc but infinite extensions to their power and to our restrictions, but that it would not have the guts to scrap them if they already existed by the election. If the rules were in place before then, there were jobs for life to be won for a fresh regiment of paper-shufflers. OFSTED has been turned from the guardian of educational standards into an army of unthinking box-tickers. Again, it seems unlikely that any minister intended that friends from “hard-working families” (a species which New Labour claims to hold dear, judging by the slimy ease with which the expression is trotted out) should need criminal records checks to look after each others’ children whilst they go to work, but it is they who created the culture in which unaccountable minions from failing government agencies can interfere in private lives. As to the police, it is right to say that they have been under-resourced whilst money has been poured into less useful things (like all those nose-poking civil servants), but that does not justify the neglect of a mother made miserable by feral yobs. Police pay-related performance indicators take no account of the misery caused by low-level street violence, so it is ignored.

There are cross-overs from here into e-discovery topics, to do with rules and discretion, with self-governance, competence and good management, and with the fact that gender is no bar to success in e-discovery as it seems to be in British politics. The most important is the role of authority (whether of governments and laws or of judges and court rules) to provide a minimal framework of regulation within which discretion can operate, holding the ring between competing interests rather than purporting to direct every move.  Although I often pick up such parallels, that is not my purpose here. That is as I said at the outset – that being in a foreign land gives you a foreigner’s view of your own country. I am as patriotic as one can be, but in relation at least to the things I have mentioned, I am ashamed of what we have done to freedom in my own country.

I should also be embarrassed by the fact that the unpleasant man who has jockeyed and back-stabbed his way to being our Prime Minister (he was not elected to that position) could only get to speak to President Obama by ambushing him in the corner of a kitchen, like some old groper determined to kiss the hostess at a party. I was laughing too much to be embarrassed, however. I will come back to this.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Civil Liberties, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation Support. Bookmark the permalink.

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