No to Kneejerk Justice
Not long after Jacqui Smith declared that the 42-Days detention measure was brought in as part of a new culture of preventing knee-jerk legislation, Jack Straw… puts through knee-jerk legislation. After a ruling by the Law Lords last week that the present witness anonymity rules jeopardise fair trials, Mr. Straw has decided that the best response is to rush through a Bill that risks being poorly thought-through, failing to adequately address the issues at stake, and filled with unintended consequences.
The reasons for doing so are perfectly understandable: the ruling risks undermining numerous trials that rely on the testimony of anonymous witnesses. The police consider it vital for convicting gang members, drug dealers and murderers. Their case is admirable, but so is that of the Law Lords. It is fundamental to a fair trial to be able to face one’s accuser; to be unable to do so moves the burden of proof away from the prosecution. The defence, unable to cross-examine the credibility of a witness, have to disprove their testimony. In so doing the presumption of innocence is removed. Moreover, the psychological effect of witnesses giving testimony anonymously prejudices the outcome of the trial by implying that the accused is violent.
In these cases the ability to get witnesses to come forward needs to be balanced against the right to face one’s accusers. The Law Lords felt that this was not occurring. The Government’s response should be to take this move constructively and create a law that deals with this serious problem. The concern that the system could allow for a miscarriage of justice is genuine: emergency legislation will not alleviate it. The best solution would be to have a free vote on the matter to ensure proper scrutiny and discussion of what is a particularly difficult legal conundrum. Parliament lends itself towards this solution: the Commons is filled with lawyers, and their expertise, scrutinised through various readings and checked against the expert opinion of those in the Lords, could produce a sensible law. The debate should be constructive and beyond party-political lines. The legislature moves slowly because justice must be deliberate.
More haste less speed.
Sphere: Related ContentJack Straw Undermines the Political Process
The latest response by Labour to Lord Ashcroft’s fundraising for target marginals has been a grossly biased fundraising bill proposed by Jack Straw. The most offensive of these proposals has been the banning of any spending by candidates other than during an election.
On the face of it this would not seem too bad. However, when you discover that an MP will be granted ?10,000 in the form of a “communications allowance” it starts to look bad. As Iain Dale highlights, candidates in marginals have to spend a large amount of their own money on campaign expenses and activities, and this measure tips the balance in favour of the incumbent. Sitting MPs have the upper hand in terms of funding, media access and recognition. Cutting off funding until the election period will put challengers at even more of a disadvantage. The incumbent will have just a few weeks to challenge someone with four years’ exposure and the backing of the Westminster machine.
This is damaging to democracy. By banning challengers from promoting themselves or their views, the ability to have proper political debate at the constituency level is crushed. It will further centralise politics, confining debate to Westminster. Candidates will no longer be able to offer constituents alternatives and keep MPs on their toes. Local communities will suffer as a result of this loss of accountability.
Given the importance of marginal constituencies in any election, we can assume that local parties will obey the letter but not the spirit of the law. Funding will be driven underground. Loopholes and workarounds will be exploited. Publicity will be generated by other means. Parties will start financing candidates without announcing their candidacy in public. The resulting disaffection when these practices are discovered will damage the overall political process.
More importantly for Labour, this is also not in their long-term interest. There is a possibility of a Tory landslide at the next general election. With the advantage given to the incumbent, the possibility of Labour regaining power four years later diminishes. What looks good to Labour now may come back to haunt them when they are sitting on the other side of the Commons.
David Cameron’s response leaves something to be desired. His proposal to limit individual funding strikes more of making Labour uncomfortable about its union backing. It is a pointless exercise as they will never accept a measure that makes them bankrupt. Cameron should rise above Straw’s gerrymandering and propose a sensible and measured alternative. That would show up Labour’s unprincipled opportunism far more than any tit-for-tat amendment.
Sent from my BlackBerry? wireless device
The No Vote Affirms Democracy
The Irish “No” vote in yesterday’s referendum on the Lisbon treaty has sent European leaders on an elaborate finger-pointing exercise. Fears about abortion, neutrality and taxation are blamed as the proximate reasons for the rejection. Anything is blamed other than a dissatisfaction with the direction in which the EU is heading.
To place the blame so squarely with such disparate and supposedly “fatuous” issues is to miss the point. There is deep discomfort among many about the very nature of the treaty and the wider institutions of the European Union. That the No Campaign’s supposed “fear-mongering” was successful is a condemnation of the impenetrability of the treaty. The attempt to pass the treaty by making it so ambiguous, confusing and inaccessible backfired: it made it near impossible to rebut the concerns raised by opponents.
The issues on which the Irish voted were tangential to a larger issue: the arrogance of the institution as a whole. The Lisbon treaty represented the EU at its worst: unaccountable, inaccessible and undemocratic. Many Europeans feel that their leaders are pushing for a European project that is moving too quickly and in the wrong direction. The failure to accept the French and Dutch “no” votes, and the resulting refusals for others to hold referenda on Lisbon, represented an EU that did not care about the opinions of its citizens.
It does not have to be this way: the sensible route for reform in an enlarged EU is to ditch the dream of federalism and work on a smaller, more accountable institution. I doubt anyone believes that the EU is best in its present state. What the No voters object to is the top-down and “more of the same, but better” attitude of reform at present.
Sphere: Related ContentBravo David Davis
David Davis’ resignation as an MP last night is a move that ought to be welcomed by all who favour good government and the protection of the rights of the citizen. The arguments presented in the House of Commons throughout yesterday in favour of extending pre-charge detention were notable by their absence. Much like the justifications printed in The Sun, on close inspection the case is much weaker than one would believe (of their much-touted “42 reasons for 42 days, 34 were not reasons but simply statements of “Look! There’s a shifty man with a beard over there!”) They boiled down to the following:
- The police want it so they must get it;
- We might need longer in the future;
- It’s popular.
The first argument I have addressed rather exhaustively in a previous post on this blog, so I will not repeat it unnecessarily. The second has also been addressed, but I will add two extra points: first, there is no reason why legislating if the need arises in the future need be “knee jerk”. The only reason such legislation has been in the past is because the government has a tendency of acting like headless chickens in a crisis. It is perfectly conceivable that the Commons could introduce good legislation on the issue if it were not unduly pressured by the government to chase the relevant Daily Mail headline. This point is tantamount to an admission by Gordon Brown that the image he cultivated last year of being calm and firm in a crisis is a myth.
The third argument however is far more deceitful. Certainly, on the face of it, the polls do suggest that an extension of pre-charge detention is popular. However this is because the public have been misled by the government as to the alternatives. When faced with the two options of “do something” or “do nothing” in regards to terrorism, the public will naturally (and correctly) favour doing something. Nevertheless this does not equate to a mandate for draconianism. The polling presents a false choice where the only means of “doing something” is to extend pre-charge detention. Numerous alternatives exist, ranging from the admission of intercept evidence to allowing greater post-charge questioning. Any curtailing of Habeas Corpus should only occur after the alternatives have been exhausted. In this case it is clear that they have not. Were the public to be polled on the issue presented with the alternatives, the level of support for the government would no doubt drop. Were they to be informed of much of the practice of this current measure likewise, the level of support would further decrease. Gordon Brown however seems insistent on presenting 42-day detention as the only means of combating terrorism, and weakening our capability to effectively counter it by shutting down reasoned debate on the problem.
The comment by Gordon Brown in Prime Minister’s Questions that something “cannot be both draconian and useless” is also rather ill-informed. Draconian measures often prove in the end to be useless by undermining the support for the underlying aims of the policy they are meant to advance. Sir Robert Peel’s reforms of the death penalty acknowledged this, as did Michel Foucault in Discipline and Punish. The draconianism of policies ultimately evokes popular opposition that undermines the effectiveness and legitimacy of the law. They become useless because their unpopularity means that people are unwilling to support it. The present measure combines both a draconian message that will alienate the very people the government needs to get on board to combat terrorism, and will be a useless weapon because of it.
The government won by the worst combination of pork-barrel politics, bribery and factionalism. Debate was replaced by MPs voting for self-interest. Gordon Brown sold any claim to statesmanship he had last night with this desperate series of bribes to various sectional interest groups. He then insulted the intelligence of the electorate by insisting that no such deals had been made. To invoke the Parliament Act subsequently to ram it through potential opposition in the Lords would further undermine the constitutional settlement of the United Kingdom.
I met David Davis during the Conservative leadership campaign. He is a man of principle and conviction. This decision will not have been an easy one for him to make, but nonetheless it is the right one. A victory in the resulting by-election will undermine the claim to a popular mandate that is tacitly required for invoking the Parliament Act. It will also commit the Conservative Party to the side of liberty over the worst sort of creeping authoritarianism that has characterised the Home Office in recent years. It will also open the debate on liberty and security to the public at large, hopefully undermining the simplistic and false dichotomy newspapers such as The Sun have presented.
He is right to challenge the attitude in government that the rights of the British people should be trampled on, ranging from ID cards to the right to a trial by jury, and the arrogant attitude that one is guilty until proven otherwise. The government has placed itself on the opposing side of freedom on nearly every issue imaginable. This principled stand against the erosion of the traditional rights and liberties of the British is long overdue. Bravo to David Davis and good luck.
Sphere: Related ContentParliament is Stronger if it Votes against the Government
Home Office Minister Tony McNulty has announced on Radio 4 today that “it will be damaging to Parliament as an institution” if it fails to vote in favour of increasing the limit on detention without charge to 42 days.
Did Parliament suffer institutional damage when it voted against detention without charge for ninety days? The rejection of measures proposed by the government of the day reflects on Parliament favourably as a sign of institutional strength. A Parliament that can stand up to the government and defeat its proposals demonstrates that it is more than a rubber-stamp legislature, and is capable of acting independently. It asserts its sovereign constitutional status as above the government, and reminds voters that its members are capable of judgement independent of party. The cynical rallying of backbench rebels to the government on grounds of party loyalty and survival would do more to damage Parliament’s institutional status than MPs exercising their own judgement.
When MPs are encouraged to debate and vote according to their conscience, it elevates the esteem in which people hold Parliament. The most recent example would be the debate last month over abortion time limits. The ability of MPs to act independently of the whips resulted in a higher quality of debate and the press covered the affair in detail. For a brief moment, the cynicism of many towards politicians was set aside to witness the Commons at its best. Contrary to McNulty’s proclamation, dissent within the Houses strengthens Parliament as an institution by demonstrating its independence from government and capability to actually deliberate legislation.
One can accept however that to hold free votes on every matter is impractical. National mandates, internal discipline and the requirement for national politics to be above party politics may on occasion require a party to deploy the three line whip. It would be naïve to assume that all of the electorate vote for candidates before they do parties. On numerous issues, a leader may be required to whip his MPs to assert his personal mandate and maintain discipline against the infighting that can paralyse and bring down governments. But let’s not pretend that when MPs break those whips it damages Parliament. It may damage the party and possibly the government, but Parliament as an institution does not suffer for it.
Sphere: Related ContentInteresting Comment on Question Time
Localism's latest convert?
An interesting comment by David Milliband on Question Time tonight. He claimed that the UK is far “too centralised”. Given the Conservative focus on greater delegation of government responsibilities and their localist agenda, could he be preparing to outflank the Tories on the issue in the event he becomes Labour leader?
Sphere: Related Content42 Days and the Upper House
I will be covering the House of Commons debate of this Bill using coveritlive next week. More details closer to the time.
When the clearly draconian proposal of detention of suspected terrorists without charge for a maximum period of ninety days was watered down to twenty-eight, I predicted that the government had unfinished business. 28 days was the thin end of an authoritarian wedge. The Government would wait sufficient time for the measure to normalise before pushing for further extensions. This represents a rolling back of the moderate victory 28 days represented.
The arguments in favour simply do not stand up to criticism. Notwithstanding the disquiet about the measure within the service, the argument that “the police want it” is not sufficient in a liberal democracy. Like any corporate institution (in the Huntingdonian sense), their perception of what the country needs is coloured by their own peculiar experience and ethos. The duty of the politician is therefore not to bow to every demand the police make, but to determine which ones are legitimate, and which ones are not. Police desire for a measure, while useful, does not form a sufficient political case without further supporting arguments. One might look to those involved in the prosecution of terrorist suspects for such supporting arguments. Here however such arguments are noticeable by their absence. Lord Goldsmith, the former Attorney-General, has said “the case has not been made for that extension and I can’t personally support it”. The Director of Public Prosecutions has expressed no desire for an extension of the period of detention without charge. He considers the existing legislation “sufficient”. Furthermore, members of the Crown Prosecution Service have admitted that, in the past three years, only three suspects have been held beyond fourteen days. Such high-profile independent criticism by expert practitioners undermines any case for extended internment.
The argument that the powers should be granted now because they may be needed in the future is asinine. It is tantamount to an admission by the government that they have no justification. Granting the government the powers anyway because they may be able to make a case in the future but are unable to do so now is to promote complacency and arrogance. The logical response is to make the case in the future when it exists. As Sir Ken MacDonald points out, there is a difference between possibility and probability. It is entirely possible that a giant purple dragon called Morris will destroy my house tomorrow. It is however highly improbable. Just because something may be needed in the future does not means it will be. When citizens’ fundamental freedoms are at stake, the decision should favour the rights of the citizen. It is the sort of pre-emptive condescending legislation that is an affront to liberty.
There is little tolerance for the person who arms himself with a knife because it is possible he may be attacked. We all know that such self-armament risks escalating violence. Likewise it is irresponsible to extend detention without charge without good reason at present. It is an unnecessary escalation that may well put British citizens at greater risk. When political capital can be made by extremists about any measure that may be conceived as illiberal, it is ludicrous to suggest that further illiberality without a clear, present and pressing need is a vital weapon against those same extremists and their followers.
The safeguards suggested are little of the sort. In practice they make no difference; the executive retains unaccountable power. The Home Secretary is not going to challenge the assumptions the security apparatus make, and Parliament will not be availed of the information to challenge the Home Secretary as do so would be prejudicial to a trial. Home Secretaries frequently place themselves as the opponents of liberty, and to suggest that their opinion is the safeguard of it is so ludicrous it would be funny if it were not so serious. In a genuine emergency situation, the period of detention without charge can already be extended under the Civil Contingencies Act. What this new legislation changes is the ease with which such extensions occur, and the requirement for judicial oversight. It is the executive seeking to appropriate more power over the lives of citizens without justification.
My prediction is that the Bill will pass in the Commons by a narrow margin. Labour is running scared of a Conservative resurgence and some backbenchers will rally to their party to prevent a further defeat. Others will uncritically accept the safeguards without challenging their fundamental assumption that the executive can self-regulate, or understanding that the measure is abhorrent in its entirety, not in part.
Things could get interesting however in the House of Lords. The Upper House has consistently demonstrated that it is on the side of liberty against the government. The advice of such prominent figures as Lord Goldsmith and the Law Lords could sway many undecided peers. Combined with a divided Labour bench, Conservative and Liberal Democrat benches opposing the measure and the support of crossbenchers, the House has a good chance of defeating the Bill. Sending it back to the House of Commons may well change the outcome insofar as wavering supporters of the Bill, faced with a resounding rejection by the experts in the Other Place, could change their minds. Assuming that they did not, by dragging out the legislative process, the Lords could delay the passage of the Bill to the point where a government more friendly to civil liberty takes power and defeats it.
Legislation tends to be scrutinised in more detail in the Lords. Through a longer legislative process, the House could include safeguards worthy of the name into the final Bill. Although this is not the best outcome, it is nonetheless far preferable to the legislation in its current form. By drawing out Parliament’s debate and therefore the controversy surrounding the measure, the government could also be forced to make further concessions.
The nuclear option of the Parliament Act could ultimately see the Bill’s defeat. Curtailing Habeas Corpus is illiberal enough, but overriding the objections of experts in the Lords to pass it would be even worse. The possibility could be enough to encourage further Labour MPs to rebel against such a drastic measure, enough to see its defeat, or to encourage ambitious young Cabinet ministers to use the issue to force Brown’s departure.
UPDATE: It appears that the Bill is to be debated on Wednesday. If that is the case it is unlikely that I will be able to cover it fully. I’ll keep you updated on Twitter.
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