When is a libertarian not a libertarian? When, apparently, it is the wrong kind of people whose liberties are being curtailed. The past week has seen so-called “libertarian” Tory MPs rebel against the government’s Covid plan B – the necessity for vaccine certificates or negative tests to attend large venues, mandatory vaccinations for NHS staff, and the compulsory wearing of masks in certain spaces. “We’re not a ‘papers please’ society,” Tory MP Marcus Fysh claimed. “This is not Nazi Germany.”
Forget the gratuitous Nazi analogy, for which Fysh apologised; such a stance is now endemic in much discussion of Covid restrictions. The fact is, for many people, Britain is very much a “papers please” society. “Papers please” is what the “hostile environment” for immigrants is built on – the demand that people who might be immigrants must show their papers before they can receive hospital treatment, rent a flat or find a job. It’s what lies at the heart of the Windrush scandal – the insistence that those who did not have the right papers could not be British, even if they had been born here, and had lived and worked here all their lives.
The failure to recognise this is not an unfortunate oversight. Rightwing libertarians often have a selective view of who should be able to avail themselves of liberty. In the run-up to the debate over Covid restrictions, two other laws deserving of their attention passed through parliament. The libertarians’ response to both revealed their authoritarian core.
The government’s police, crime, sentencing and courts bill is currently in its committee stage in the Lords, having travelled through the Commons. At its heart is an assault on the ability of people to protest. The law would allow police to prevent demonstrations they deem too noisy or causing “serious disruption”. What “serious disruption” means is left to the home secretary to define.
An array of amendments the government has quietly added to the bill include measures to proscribe protesters from attaching themselves to another person or to an object, and the use of “serious disruption prevention orders” to ban individuals from protesting. These can be imposed on anyone who has previously been convicted of a “protest-related offence”, or who simply has been to two protests in which they carried out activities that could have caused serious disruption. Breaking such bans could lead to 51 weeks’ imprisonment. Police are also to be given new powers to stop and search people without suspicion.
It is one of the most ferociously illiberal laws of recent times. So, how many of our libertarian Tories voted against the bill at its third reading in July? Not one. Fysh objects to a “papers please” society but is happy to assent to a “you cannot protest unless the home secretary allows you to” state.
And then there is the nationality and borders bill, which had its third reading in the Commons earlier this month. The bill proposes “differential treatment of refugees” depending on how they arrived here. Those who come through “regular means” – with papers or permission to enter the UK – will be eligible to claim asylum. But any asylum seeker who “knowingly arrives” without “leave to enter” could be jailed for up to four years. This is to criminalise the very act of seeking asylum. It is also to enlarge the “papers please” approach of the hostile environment. Not just asylum seekers, but anyone helping them will also be criminalised – even if providing humanitarian assistance – and could face life imprisonment.
One of the many amendments the government has added to the bill gives the home secretary unprecedented powers to deprive an individual of citizenship without even informing them. Tory MP and former Brexit minister David Davis described the bill as “deeply flawed” and suggested that plans to establish offshore asylum detention centres could “create a British Guantánamo Bay”.
Presumably, then, Davis voted against the bill? No. He supported it. As did 290 other Tory MPs. A further 66 abstained or did not vote. Again, not a single Tory opposed the bill.
Tory libertarians are not libertarian in any meaningful sense. They accept, indeed welcome, the most grotesque denial by the state of individual liberty so long as it is directed against people they deem unworthy of such freedoms, whether protesters or immigrants.
Some commentators, such as the Spectator editor and Daily Telegraph columnist Fraser Nelson, have bemoaned “the rise of illiberal conservatism”. Such illiberalism is, however, neither new nor strange. Belief in small government and free markets has long coexisted with an insistence on the strict policing of those deemed “undesirable”.
Nelson cites the 19th-century liberal Walter Bagehot as an exemplar of the kind of liberal conservatism he would like to re-establish. In 1852, writing from Paris, Bagehot welcomed Louis Napoleon’s bloody coup d’etat the previous year to suppress the 1848 revolution. “The first duty of society,” Bagehot insisted, “is the preservation of society: to keep up this system we must sacrifice everything. Parliaments, liberty, leading articles, essays, eloquence – all are good, but they are secondary.” He warned against being “misled by any high-flown speculations about liberty or equality” and to recognise the need to protect society from the “dangerous classes”. It’s a sentiment as alive today as it was then.
Liberty has always been a contested issue, both in its meaning and in its scope. Those in power have constantly attempted to exclude certain groups from benefiting from the largesse of liberty. “How is it that we hear the loudest yelps for liberty among the drivers of negroes?” asked Samuel Johnson (no friend of liberty himself) of the American revolutionaries of 1776.
It was historically the left that waved the banner of liberty, seeking to expand its meaning and to include debarred groups, from the working class to women to colonial subjects. These struggles gave shape to the modern meaning of liberty. More recently, though, many sections of the left have retreated from issues that once helped define it, from free speech to civil liberties. This has given a free pass to the libertarian right both to don the mantle of freedom and to distort its meaning; “libertarians” who are happy to deny basic freedoms to those who need it most. Liberty is too important to leave to those who don’t really believe in it.