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The Cultural Lives of Security and Rights
LIBERAL LEGAL AND political theorists often posit an antique and inescapable tension between the claims of security and those of liberty. They have consequently busied themselves, and quite properly so, with the task of analysing precisely the manner in which these goods clash and how one might strike the appropriate ‘balance’ between them, or else with seeking to protect rights protections from the consequentialist logic of the balance metaphor.1 But this tension, along with the seemingly innocent notion that one should strive to balance them, also surfaces routinely within the cultural lives of security and rights—that is, within quotidian social and political struggles to champion the merits and press the claims of one or other of these competing social goods. In the course of these struggles, for reasons I want shortly to describe and reflect upon, appeals to security have a pronounced tendency to trump demands for the protection of individual rights.
In the English setting with which I am most familiar, and upon which I concentrate in this chapter, this has been apparent for some time—in the manner in which high-profile miscarriages of justice have been so easily ‘handled’; in public responses to CCTV; in the ways in which certain legal protections have been sidestepped or cast aside in the battle against anti-social behaviour; in the refusal of certain elements of English culture and society to treat the European Convention on Human Rights (ECHR) and the Human Rights Act (HRA) 1998 as settled parts of legal architecture; and in many of the illiberal practices mobilised today in a bid to win a ‘war’ against international terrorism. What these examples reveal and share in common is a dynamic in which political, professional and media actors are able to mobilise a populist appeal to the idea of security, while presenting rights claims as the concern of remote special interest groups willing to play fast and loose with the safety of their co-citizens.
The impulse of human rights theorists and activists faced with this inhospitable climate is often to resort to first principles in order to assert the fundamental importance and primacy of rights over security and to defend the former against the encroaching—majoritarian and potentially tyrannous—imperatives of the latter. One can easily see why this move is made, and it is no part of my purpose to suggest that it is entirely wrong-headed or ought to be abandoned. I want nonetheless to chart a different course—one that I think is relatively unexplored in what remains a predominantly legal and philosophical discourse about human rights but which draws upon and extends work in criminology that is concerned with the social and cultural analysis of lay anxieties towards crime and their political articulation and effects.2 I want, in particular, to lay some foundations for a cultural sociology of the meanings-in-use of rights and security in contemporary political and public culture and, in so doing, deepen our understanding of how and why the metaphor of balance either seems in practical contexts to do so little work, or else operates to privilege the claims of security. Before doing so, however, some prefatory remarks are in order about the focal concerns of this line of enquiry and the value of pursuing it.
Paying close hermeneutic attention to rights and security in the vernacular enables us first of all to explore the ways in which these goods, and the claims that are made or disputed in respect of them, are intimately and inescapably entangled with people’s hopes, fears and fantasies concerning the trajectory of their own lives, and that of the political community which they inhabit. The things that people say about rights and security, and the sensibilities displayed towards each of them, thus need to be apprehended in terms of their (often deeply affective) intersections with matters of political subjectivity and collective identity, and the lines of affiliation and exclusion, recognition and non-or mis-recognition, responsibility and accountability, that people draw when such matters are up for dispute. It enables us, in the present case, to highlight certain key properties of the contemporary cultural politics of this terrain, drawing our attention to the deep allure of, and the anxieties and fantasies evoked by, appeals for and to security, and the reasons underpinning what appears to be a weak identification with, even distaste for, human rights within elements of English culture and society.
This hermeneutic approach enables us to discern, secondly, some of the cultural limits of a strategy that is commonly deployed to defend and extend human rights—one that insists upon a rather narrow legalistic assertion of the value of rights and their protection, and understands rights protection as a project that has, unfortunately but necessarily, to be defended or advanced by social movements or legal reform groups in the face of lay ignorance, indifference or disdain. Analysing the cultural lives of security and rights not only highlights the limitations of this mode of thinking about and pressing the claims of human rights. It also, for reasons I set out briefly in the conclusion to this chapter and develop more fully elsewhere,3 leads one not to start with individual rights and defend them against the claims of security, but to try instead to articulate and defend an egalitarian, other-regarding and, in these senses, rights-conducive practice of security—what one may, rhetorically, call rescuing security from the ‘security lobby’.4
This chapter is in this respect partly an attempt to theorise an intuition that I have long held and acted upon but which has never entirely ceased to trouble me. The intuition leads me to recognise that human rights are an indispensable part of any good society and ought to be defended as such. It at the same time leaves me rather uninspired by human rights theory and praxis and seldom minded to become a rights scholar or activist. This is troubling because I suspect that it is in some part the complacent sensibility of someone who belongs to a society that recognises the value of human rights and continues to afford its citizens a measure of rights protection—akin, if one likes, to the cosmopolitan Western academic who takes for granted the benefits of a stable national identity while decrying the value of national political communities. But I think my intuition towards rights also has something to do with the fact that they—like the liberalism with which they are most closely identified5—speak more to our fears and the way the state is negatively implicated in them, than to our political hopes and the way in which the state can be positively bound up with their realisation.6 I have, I suppose, a predilection for thinking about and seeking to advance the latter, something that has prompted me to think about rights through the solidaristic lens of security.
It ought to be noted, thirdly, that what I propose here is an empirical project. It is impossible to get very far in making sense of the cultural lives of security and rights without bumping into empirical questions—questions that call for a style of enquiry comprised of close observation and depth interpretation best conducted in situ. This places me in the apparently paradoxical position of writing a largely theoretical paper in support of a project committed to the fine-grained interpretive analysis of the political and lay vernacular of rights and security, the struggles that occur between them and the matters that are deemed to be at issue when they do battle in the settings of everyday social relations and public life. Hence the rather speculative nature of much of what follows, which I think is best read as extending an invitation to others to incorporate a new dimension into the way in which we theorise and investigate the interplay between security and human rights.
I. SECURITY AS TRUMPS? SOME IDIOMS OF ENGLISH PUBLIC CULTURE
I want to begin by sketching out some recent examples of how the tension between security and rights has been articulated and addressed in the settings of English public life. My aim here is not to engage in any sort of detailed reconstruction of these conflicts—a task that stands well beyond the ambit of this chapter. Instead, I wish to outline what appear to be certain recurrent properties of the interplay between lay anxieties towards crime and in/security and their political articulation in a range of sites in which the claims of security and those of rights have clashed. The common thread that holds these examples together is the invocation of a logic of populist reason7 that enables security and its surrogates (safety, order, protection, etc) to act as a trump whose imperatives have a marked propensity to prevail over the claims pressed by remote, liberal (and, it is commonly said, safe and secure) special interest groups on behalf of rights. Five such cases will suffice to demonstrate this logic at work. In each case they are best, or at least most provocatively, introduced by means of the idioms that are expressly mobilised or implicitly in play during the course of struggles to ‘name’ the problem and fix the appropriate response.8
1. ‘No Smoke without Fire’
In the mid-to late 1980s, following several years marked by angry denial among government, the media and elements of the judiciary, several serious miscarriages of justice arising from the conflict in Northern Ireland were officially acknowledged and ‘rectified’—notably the cases of the ‘Birmingham Six’ and ‘Guildford Four’. These were followed, in turn, by a welter of cognate cases encompassing the convictions quashed against many of those prosecuted by the West Midlands Serious Crime Squad (which was disbanded in 1989), four men wrongly convicted of killing newspaper boy Carl Bridgewater, the ‘Cardiff Three’, the ‘Tottenham Three’ (wrongly convicted of murdering PC Keith Blakelock during the 1985 urban disorders), and Stephen Kiszko.
These cases shared in common the unlawful prosecution and unsafe conviction of individuals who were either personally vulnerable or members of unpopular groups, in circumstances where the police exceeded their powers in the face of intense public pressure to ‘get results’ following criminal or terrorist outrage. In the opinion of Robert Reiner, these events ‘profoundly shook public opinion’, their victims becoming for a time household names.9 The sense of crisis they occasioned forced the then Conservative government—for the second time in just over a decade—to set up a Royal Commission on Criminal Justice,10 an instrument of rule that the Thatcher administration found distasteful and wished to consign to constitutional history. The death-knell of a police-centred, authoritarian law and order politics appeared to have been sounded.
Yet during the course of its deliberations, the Royal Commission’s work came to be resituated within and overtaken by the altogether different sense of crisis that followed the murder of toddler James Bulger by two 10-year-old boys in February 1993 and the subsequent intense public debate about what the Daily Express chose to call ‘lawless Britain’. In the face of demands for what has come within English political discourse to be called ‘security’, and in the midst of a febrile political atmosphere in which a weak government sought to underpin its faltering legitimacy by giving voice and effect to the demands for order of anxious, ‘respectable’ citizens, the Royal Commission’s investigations into the general disregard for suspects’ rights resulted instead in measures that, inter alia, curtailed the accused’s right of silence.
I am not seeking to deny that the ‘miscarriages of justice’ cases have had important and beneficial consequences for police practice, or that they have shaken the faith that some elements of the populace once had in the police.11 But events that appeared initially to have delivered a telling blow to the politics of law and order have in fact been all too easily ‘managed’ by those who were rather uncomfortable with the scathing criticism that rained down upon the police and who were always minded to feel—if not publicly say—that ‘there is no smoke without fire’. As a result, the societal lessons that might have been properly learned from those events are at risk of being forgotten or buried in a context where, once more, the police are coming under intense pressure to defend ‘our way of life’ from those alien, dangerous others who have brought, or may yet bring, fear and carnage to ‘our’ towns and cities.
2. ‘If You’ve Got Nothing to Hide, You’ve Got Nothing to Fear’
Closed-circuit television (CCTV) surveillance has within the short space of two decades become a commonplace feature of the urban landscape of the United Kingdom. It is now easily forgotten that the first such cameras were installed in retail outlets in 1967, on the London Underground in 1975 and in a public setting (the promenade in Bournemouth) for the first time in 1985. Today millions of pounds per year are spent on CCTV schemes in England and Wales, and cameras have become familiar sights in shopping malls, airports, workplaces, town and city centres, sports stadia, schools, hospitals, police stations, the road network and certain residential areas.12 This rapid social and technological development, which has made the United Kingdom a candidate for the most surveilled society on earth, has been remarkable in part for the lack of public debate and degree of public acceptance of, even enthusiasm for, the onset of CCTV technology. One telling indicator of the lack of public debate is the absence of a discourse of ‘balance’ in this context: there are, it seems, no genuine rights being infringed by CCTV and thus nothing to be balanced. As that routinely deployed ‘saying of the tribe’ has it,13 ‘if you’ve got nothing to hide, you’ve got nothing to fear’.
One thus tends to encounter in this corner of the field of security politics a pattern of political and lay sensibilities that overwhelmingly holds CCTV cameras to be a positive crime and disorder controlling force, a mindset disposed either to promote or willingly to accede to the view that cameras are effective in this task. Against this, one is struck by the relative weakness—it is almost not too strong to say absence—of a critical discourse focusing on the effects of mass surveillance on human rights. (Compare the case of identity cards, which seem much more able to touch a nerve within popular English sentiment.) CCTV has, it seems, become a non-issue, certainly in respect of electoral politics but also within public life more generally.
It is true that certain instances of individuals being caught engaged in legal but embarrassing acts on camera (from sex to suicide) have caused offence and momentary uproar; that people continue to fret about the selling of camera footage to television companies and the attendant formation of a surveillance-entertainment culture; and that the largely middle-class ‘road lobby’ has become angry about speed cameras and active in defence of the ‘freedoms’ they are deemed to threaten. But these appear isolated and sporadic exceptions to a lay response that has remained steadfastly untroubled by CCTV. ‘Big Brother’ critiques have not managed to obtain much cultural or political purchase in the face of the ‘obvious’ benefits of surveillance technology, both actual and—in the context of an ongoing ‘war’ on terror—potential. If one doubts this, simply reflect for a moment on how difficult it currently is to launch a serious sustained debate on the regulation of CCTV, or imagine the incredulous laughter that is likely to greet the claim that British society has been too promiscuous in its deployment of cameras and that some of them ought reasonably to be taken down.
3. The ‘So-called’ Human Rights Act
My third example concerns a piece of legislation that appears at first glance to represent a challenge to the depiction of the vernacular of security and rights presented thus far—namely, the enshrining within English law of the protections that the British government long ago signed up to under the European Convention on Human Rights. The enactment of the Human Rights Act 1998 appears to indicate the existence of powerful support for legally enforceable, government-constraining rights within British society—and its passage was indeed enthusiastically welcomed within legal and civil liberties circles. Yet subsequent reaction to what Conservative politicians have sometimes tellingly named the ‘so-called’ Human Rights Act indicates that this landmark legislation has not yet been embedded in a way that enables it confidently to function as such legislation is intended—as a series of protections for individuals, providing a frame for the conduct of political life that politics itself should not encroach upon. The Act has, in other words, ushered in a human rights politics whose terms of dispute are the proper province and legal meaning of its protections, but without entirely dispensing with a politics of human rights that refuses to treat the Act as a settled and legitimate pillar of Britain’s legal and political architecture.14
One curious dimension of this has been the embarrassment that the New Labour parent appears to feel towards its human rights child. Not only is it rare to find governmental actors singing in praise of the Human Rights Act, or using it as a platform for the formation of a culture of human rights within British society; one has even of late witnessed government ministers leading, or at least feeding, what has at times become a tabloid frenzy against the allegedly absurd consequences of enshrining human rights protections in law.15 The Act appears, in other words, to sit uneasily alongside a dominant political discourse that insists that, as a society, we have become preoccupied with rights at the perilous cost of neglecting a sense of mutual obligation and responsibility. At the very least, this is human rights protection by stealth—in the face of an environment judged to be inhospitable to a strong defence of its claims.
There may, however, be something in the fact that the wider culture remains sceptical, perhaps even hostile. Part of the picture here is that strand of English conservative opinion that has come—in ignorance of the part that the British government played in creating the ECHR in the wake of World War II—to consider human rights as something ‘foreign’, a European (Union) imposition on the anti-rationalist and pragmatic traditions of English common law and its ‘incidental and organic approach to rights and liberties’.16