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Monday, March 23, 2009 

Rights and responsibilities in a policy vacuum.

2009 is turning out to be an incredibly strange year as far as politics is concerned. By any measure, Labour ought to be doing far far worse in the polls than it currently is - most showing a Conservative lead of around 12 points, which if repeated at the ballot box would give Cameron's Tories either a very slim majority or result in a hung parliament. Labour would suffer major casualties, but still not have been wiped out to anything like the extent to which the Tories were in 1997. It's uncertain why despite the recession that Labour's support is holding up, even if reports claiming that if the recession bottoms out before polling day that Labour could still pull it back seem optimistic at best. Brown's constant repetition of two points, firstly that the economic crisis is global, which is true, but doesn't acquit him especially as far as banking regulation goes, and secondly that the Conservatives are the "do nothing" party, which is far less accurate, might be having some effect, but it also seems to be as others constantly witter, that voters like Cameron but don't like his party or trust them.

At the same time, there seems to be an almost complete deficit of policy discussion coming from all the main parties. This is to be expected when all thoughts turn towards the economy, and should it ought to be remembered what so many of us bemoaned for long periods - that when the differences over how to run economy went the major differences between the political parties also went. This doesn't excuse however the almost complete lack of discussion about anything other than taxes, havens and bail-outs, which has become increasingly glaring, entertaining as the Tories bickering internally over tax is. After years of discussing Iraq, we seem to want to blot all talk of Afghanistan out, a war which has never been explained in anywhere near the detail that Iraq was and continues to be. Everyone knows the supposed reasons why we went into Iraq, yet if you asked the same question about what we're doing in Afghanistan shoulders would be shrugged uniformly. We've gone from politicians wanting the troops to leave without firing a single shot to an average of around one body a week returning home, all without anything approaching a reason from a minister as to why such blood and treasure is being spent on such an apparently endless conflict.

As well as the recession, this is also partially down to the election being probably only just over a year away, and we're either at the beginning of the phony war or fast approaching it. Labour's legislating instinct has also somewhat fallen away under Brown, with the resulting dullness of Westminster except over the continuing fallout over expenses not helping. Into all this greyness, Jack Straw seems to want to inject a bit of colour, by finally getting round to publishing the green paper on "rights and responsibilities", much delayed having being trumpeted since Brown's ascension to the throne, as it were, as part of his agenda for constitutional reform. It soon becomes clear why it has been repeatedly kicked into the long grass - even by New Labour's standards, this is a document of such woe and potential pitfalls that it's quite something that it has finally come to light at all.

Fundamentally, you have to approach this knowing two things: firstly, that Labour quite rightly finally got round to introducing the European Convention on Human Rights, largely drafted by us, into our own common law, negating the need for claimants to have to go to Europe to gain recompense. Secondly, that despite its British origins, the tabloids and others have long regarded the ECHR and the HRA as foreign entities, enshrining rights that are beyond the pale, such as the right to life, right to a private family life, right against inhuman and degrading treatment etc, making the HRA appear to be a charter only for terrorists and criminals, and also one which very sadly might well threaten the tabloids' business model, bringing hated ideas of European privacy to our media and stopping the scandal sheets from splashing on the latest strumpet to shag a star. Since then Labour has always deeply regretted introducing it, and has at best put up a shallow defence of it, although Jack Straw, having introduced it, has put in a better one than others. Also to be noted is that the HRA has done very little to prevent the same government from drastically reducing actual civil liberties, given the lengths of time it takes for appellants to go all the way to Strasbourg and challenge things such as the DNA database, our own courts having not seen things the same way as the European one eventually does.

Straw's cherished bill of rights and responsibilities is then at best an attempt to make up for the unpleasantness surrounding the HRA. Straw has tried to cover this up by noting the "interesting times" in which we are living, suggesting that turmoil has often led to constitutional reform, and at the same time somewhat insultingly given the proposals bracketing the "R 'n' R" he has developed with the likes of the American declaration of independence, the subsequent constitution and the French 1789 declaration of the rights of man and the citizen. This might have worked if Straw's bill was a relatively recent idea, but it dates back to before the start of the credit crunch, if we have to call it that. It hence takes on a very different tone, one far more associated with that of New Labour - one of control.

The obvious point to make is that rights protect us, whether from the state or from other individuals or corporations. Responsibilities, on the other hand are the unwritten rules, or indeed, actual written laws which we already know we have to abide by, and which we don't need informing about. Straw actually seems to want to take it even further than this though: he seems to want to extend responsibilities into the territory of norms and values, into outright conformity with the state. The argument that the green paper makes is that some of these existing responsibilities are "arguably so central to our functioning as a society that they deserve an elevated constitutional status...". This argument might be more convincing if the responsibilities which Straw is thinking of were either breaking down and being ignored or if they weren't already being treated with respect. Yet it's a list of essential banalities which Straw wants to enshrine: treating NHS staff with respect, caring properly for children, "participating in civic society through voting and jury service", assisting the police, paying taxes, obeying the law. Yes, seriously, Straw wants potentially to enshrine obeying the law as a responsibility. While these are banalities, there's also something far more sinister lurking underneath them, especially when it comes to voting and assisting the police: neither are legally required, although you can be charged with perverting the course of justice for deliberately obstructing the police in the course of their investigations. This seems to be New Labour setting down on an elevated constitutional status at least two things which should always be personal decisions: the right not to vote especially should be as important as the right to vote.

Before we get too carried away, we ought to note that the chances of this becoming law still seem pretty slim, and the green paper itself acknowledges that the rights in the ECHR and HRA "cannot be legally contingent on the exercise of responsibilities". In others words, even if we do this, we know full well that we cannot in any way enforce them. All they're destined to be is pretty words, a sop to authoritarian opinion whilst also underlining our own far from libertarian attitudes. Even with this in mind, it bears comparison to the great aforementioned documents - nowhere in the American constitution does it outline how those in society are expected to behave whilst wielding their right to bear arms and arm bears and everything in-between, elevating them above normal status because of their utmost importance in ordering society. It smacks of a government that has become so mad with power that it no longer knows how or where to wield it; it just has to do it, and even something as important to the state as the constitution is not out of bounds to the wackiest thinking when it comes to trying to win favour with some of the nation's media. If this is the stuff to fill the policy vacuum, perhaps we want things to remain lifeless for as long as possible.

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Haven't finished reading the piece, but what do you mean by:
By any measure, Labour ought to be doing far far worse in the polls than it currently is

Because, if one refers to Anthony Wells UK Polling Report blog, this isn't clear.

You say: "negating the need for claimants to have to go to Europe to gain recompense". Then give an example of the DNA case that went to the ECtHR for a final decision.

And, don't forget the prisoners votes case. It's 5 years since the ECtHR decision and still the government has not passed legislation to remedy the abuse of human rights.

Having a Bill of rights and responsibilities is a pointless exercise if the state abuses the citizens rights and then fails to act responsibly in remedying the abuse.

A problem which appears to be not being addressed is that the HRA 1998 did not come into force for 2 years to allow public authorities and judges to get to grips with the legislation. As you incorrectly point out, the HRA forms part of our common law, it doesn't because common law is judge made law as opposed to statutes passed by Parliament. However, because EU law is based on Roman Law and English law is based on statutes and common law, it is this very difference which leaves the lawyers and judges and politicians in this country out of step with the rest of Europe.

I still say that the reaosn Labour isn't doing any worse than the worse it already is, is due to the legacy of the Tories and that so many people still don't like them or trust them to act as a decent political force, the aprty comes with too much baggage still.

I just people would consider the Liberals...

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